36122 Applied Consumer & Clinical Evaluations Inc. v. Strudwick  (Wrongful dismissal — Noting in default)

On appeal from the judgment of the Court of Appeal for Ontario pronounced August 14, 2014. The respondent commenced a wrongful dismissal suit against her former employer, the applicant.  The Statement of Claim was served on the applicant on January 19, 2012 and a Notice of Intent to Defend was filed on January 27, 2012. On November 16, 2012, an order was issued striking portions of the Statement of Claim and specifying other amendments.  Amended Statements of Claim went between the parties over the next several months. On September 6, 2013, the respondent moved to have the applicant noted in default.  The applicant’s motion to set aside the noting in default was dismissed.  The Court of Appeal dismissed the appeal.

36128 Total Oilfield Rentals Limited Partnership v. A.G. Canada, et al. (Constitutional law – Division of powers – Interprovincial transportation)

On appeal from the judgment of the Court of Appeal for Alberta pronounced August 14, 2014. The applicant is an Alberta company that describes itself as being engaged in the rental of equipment in the oilfield industry.  It has 14 branch offices in Alberta, 3 in British Columbia and 2 in Saskatchewan.  The applicant’s trucking operations consist mainly of delivering and retrieving rental equipment to and from its customers’ job sites.  When a customer requests a piece of rental equipment, it is normally dispatched from the applicant’s closest rental branch within the province where the customer is located.  However, when needed equipment is not within the job site’s province, it is shipped across provincial boundaries from the nearest location in the next province. In 2011, a $10,000 administrative penalty was levied against the applicant for violating the Commercial Vehicles Drivers’ Hours of Service Regulations, SOR/2005-313, enacted pursuant to the federal Motor Vehicle Transportation Act, R.S.C. 1985, c. 29 (3rd Supp.).  The applicant challenged the constitutional applicability of the federal Regulations to its trucking operations.  It sought a declaration that it was governed by less stringent and onerous provincial highways and motor vehicle legislation and regulations. The Court of Queen’s Bench of Alberta

declared that the applicant’s trucking operation was governed by the provincial legislation. The Court of Appeal of Alberta allowed the appeal and held that the applicant’s trucking operations found constituted a federal transportation undertaking.

36212 Rana v. Unifund Assurance Company  (Civil procedure – Case management)

On appeal from the judgment of the Court of Appeal for Ontario pronounced October 20, 2014.  Following a motor vehicle accident in 2011, the applicant commenced an action for damages in Small Claims Court.  She was subsequently served with a statement of claim issued in the Superior Court on behalf of persons allegedly injured in the accident.  The applicant brought a motion to have her case transferred to a higher court in 2013 that was adjourned to allow her to file documents in the Superior Court.  That action was subsequently administratively dismissed as abandoned by the Registrar.  The applicant again brought a motion to have her action transferred to the Superior Court. The Ontario Superior Court of Justice dismissed the applicant’s motion. The applicant was permitted to file a fresh statement of claim in Superior Court incorporating the claims she asserted in Small Claims Court together with the claims arising from the motor vehicle accident, with certain conditions. The applicant’s appeal was dismissed.

36197 Banville, et al. v. The Queen  (Canadian Charter – Criminal law  – Impaired driving – Disclosure)

On appeal from the judgment of the Court of Appeal for Quebec pronounced October 15, 2014.  The applicants were charged with operating a motor vehicle or of having the care or control of a motor vehicle after having consumed alcohol in such a quantity that the concentration in their blood exceeded 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code.  The applicants filed a motion for the disclosure of evidence or for a stay.  The motion was for manufacturer user and maintenance manuals and any other technical manuals for the devices used to take breath samples under ss. 254(2) and (3) of the Criminal Code and to analyze these samples under s. 258.  The Superior Court dismissed the motion.  The Court of Appeal dismissed the motion for permission to appeal filed by the applicants on the basis that an interlocutory judgment rejecting or allowing a request for the disclosure of evidence under s. 24 (1) of theCharter is not appealable.

36136 Conseils des Innus de Ekuanitshit v. A.G. Canada, et al.  (Environmental law – Environmental assessment – Consultation of Aboriginal peoples)

On appeal from the judgment of the Federal Court of Appeal pronounced August 22, 2014.  In 2006, Newfoundland and Labrador Hydro, now Nalcor Energy (“Nalcor”), announced its intention to build two hydroelectric plants on the Churchill River, Newfoundland and Labrador, at Gull Island and Muskrat Falls.  The construction of the plants would result in inundating an area of 126 km2.  The project was subject to a provincial and a federal environmental assessment performed by the Joint Review Panel. From March 2009 and April 2011, the Panel gathered submissions from various stakeholders, including the applicant, the Conseil des Innus de Ekuanitshit, on the environmental impact of the project proposed by Nalcor.  Moreover, in March and April 2011, the Panel held public hearings during which various stakeholders, including the applicant, made submissions.  In its report, the Panel found that the project was likely to cause significant adverse environmental and socioeconomic effects, but that the potentially significant economic benefits that it would generate, although uncertain, would compensate for these risks.  The Report also made more than 80 recommendations about the mitigation measures and the additional information that would be required on some aspects so that the Project could move forward.  According to the Panel, the Project’s impact on Quebec Aboriginals land and resource uses, after implementation of the mitigation measures proposed by Nalcor and those recommended by the Panel, would be adverse, but not significant.  In reply to the Panel’s report, the federal government found that the energy, socioeconomic and environmental benefits of the hydroelectric plant project outweighed its adverse environmental effects.  On March 12, 2012, the Governor in Council adopted an order approving the federal government’s response and authorizing, under theCanadian Environmental Assessment Act, S.C. 1992, c. 37 [Repealed, 2012, c. 19, s. 66] (the “CEEA”), Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada to follow up on the Panel’s report.  Three days later, and in accordance with s. 37(1) of the CEEA, Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada (“the responsible authorities”) decided that they would allow the implementation of the project if certain environmental mitigation measures were applied.  The applicant filed an application for judicial review with the Federal Court challenging the lawfulness of the order dated March 12, 2012, and the decision made by the responsible authorities allowing the implementation of the hydroelectric project. The Federal Court dismissed the application for judicial review and the Court of Appeal dismissed the appeal.

36176  Lorintt v. Boda  (Wills and Estates – Presumption of resulting trust)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced  September 16, 2014.  Frank Boda (the “father”) and the respondent (the “son”) visited a law office where the father indicated that he wanted to transfer his home in Vancouver (the “Property”) to his son.  After some discussion it was decided that the Property would be transferred to father and son as joint tenants.  The father and son subsequently fought.  Although the father contacted the lawyer to say he had changed his mind, he never initiated the steps necessary to end the joint tenancy. When the father died eight years later, the applicant, as the executor of the father’s will, commenced proceedings seeking a declaration that the transfer was a gratuitous transfer and that the son holds the Property in trust for the estate.  Alternatively, he alleged that the Property was transferred as a result of undue influence.  The son brought an application for orders that the allegations and relief sought by the executor in regard to the transfer of the Property be dismissed.  The executor brought an application for a declaration that the son holds the Property in trust for the estate.  The Supreme Court of British Columbia allowed the son’s application and dismissed the executor’s application.  The Court found that the father had intended to gift the Property to the son and that the relationship between the parties was such that the presumption of undue influence did not apply.  Alternatively, if the presumption of undue influence applied, it was rebutted on the evidence.  The executor’s appeal was dismissed by the Court of Appeal for British Columbia.

35826  Vijaya v. The Queen  (Charter of Rights – Search and seizure)

On appeal from the judgment of the Ontario Superior Court of Justice pronounced September 30, 2014. Following the March 14, 2014 disclosure ruling, a further issue arises in this application brought by the applicant pursuant to s. 24(1) of theCharter to quash the search warrants.  At issue is whether the applicant can satisfy the threshold to obtain leave to cross-examine on the basis of counsel’s submissions or whether the applicant must adduce some evidence in support of that request.  On September 30, 2014, the application judge held that the applicant must be able to point to material in the record that would establish a foundation upon which the court could be satisfied that granting leave to cross-examine either the affiant or the sub-affiants is warranted.  Counsel’s submissions or assurances that such a foundation exists are not, by themselves, sufficient.

36161  L.V.R. v. The Queen  (Criminal law – Sexual Exploitation – Mens rea – Defence of mistake of fact)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced September 12, 2014. The applicant was convicted of several sexual offences in relation to his ex-common law wife’s daughter, one of which was the offence of sexual exploitation (s. 153 Criminal Code).  At trial, the applicant testified that once the complainant turned 14 years old, his parental relationship with her had evolved into a friendship.  He asserted that he no longer believed he was in a position of authority or trust in respect of the complainant.  The trial judge rejected the applicant’s evidence, finding it “nonsensical to suggest that their relationship evolved away from a parental-type relationship” (para. 160).  On appeal, the applicant argued, among other things, that the trial judge failed to properly consider his defence of honest but mistaken belief. In his view, the trial judge only considered whether he was in a position of trust or authority in relation to the complainant on an objective standard, whereas a subjective belief that he was not in such a relationship, honestly held, was sufficient to establish his defence.  The Court of Appeal dismissed the appeal.

36126 Sunterra Beef Ltd. v. Shell Canada Products, et al.(Real property – Land registration – Contracts – Extrinsic evidence)

On appeal from the judgment of the Court of Appeal for Alberta pronounced August 14, 2014.  The applicant’s predecessor-in-title (“Purchaser”) approached the respondents (“Vendor”) to purchase the southwest quarter of a section of land north of Calgary.  Because the Vendor wanted to take advantage of escalating land values, the parties negotiated a clause which would trigger an obligation by the Purchaser to pay additional consideration to the Vendor in the event that within 5 years, the Vendor sold one or more of its remaining quarter sections in an unimproved state for a greater value than its appraised value on the date of the agreement.  The clause stipulated that “the subsequent addition of water and sewer connections to the boundary of one or more quarter section” would not be deemed to render land “improved”, and the Vendor registered a vendor’s lien caveat against the southwest quarter.  When the Vendor sold the northwest and northeast quarter sections, the Purchaser refused to pay the additional consideration.  The Vendor filed an Originating Notice seeking a declaration that it was entitled to a valid vendor’s lien of $6,328,000 plus GST and interest.  The Purchaser argued, inter alia, that the lands had been improved by the addition of a waterline that did not fall within the deeming provision, it was given insufficient notice of the sale, and an Originating Notice was not the proper process, given the disputed facts.  The Court of Queen’s Bench granted the declaration and the Court of Appeal dismissed the appeal.

36117 Minister of Revenue v. Inter-leasing, Inc.  (Income tax — Interest payments)

On appeal from the judgment of the Court of Appeal for Ontario pronounced August 7, 2014. This appeal concerns the validity of a series of tax reassessments issued to the respondent by the applicant, the Minister of Revenue under Ontario’s Corporations Tax Act, R.S.O. 1990, c. C.40. Under the tax reassessments, the respondent is obliged to pay tax on certain interest payments it received during its 2001 to 2004 taxation years as well as interest on the arrears. For the purposes of corporate income tax, the Minister included $271, 756, 874 in the respondent’s income for the taxation years.  Inter-Leasing appealed the tax reassessments.  The trial judge dismissed the appeal.  The Court of Appeal allowed the appeal and set aside the judgment of the trial judge.

36164  The Queen v. Gillis  (Criminal Law – Evidence – Obstruction of justice)

On appeal from the judgment of the Court of Appeal for New Brunswick pronounced September 9, 2014.  The respondent, an experienced litigation lawyer, was representing a client in criminal proceedings based on alleged misconduct in the course of the client’s former employment.  The client and the employer also were the parties in two civil actions.  During a break in the preliminary inquiry in the criminal proceedings, the respondent presented an offer to settle all three actions to the employer’s general manager.  The respondent handed him a scrap piece of paper with a written summary of the offer, including the words: “Criminal – Offer No Evidence”.  Based on that conversation and the written offer, the respondent was charged with attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding by attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence. The Crown alleges that the respondent proposed that the general manager should take steps to ensure that witnesses failed to attend or testify at the criminal trial.  The general manager testified that the respondent said: “They’re your witnesses, make sure they don’t testify and the Crown won’t have a case.”  the respondent denied making such a statement. He and his law partner testified that the phrase “Criminal – Offer No Evidence” reflected intent to ask Crown counsel to offer no evidence at the opening of the criminal trial. The Provincial Court of New Brunswick convicted the respondent of attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding. The Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial.

36182  Kim v. Peredery  (Family law – Custody)

On appeal from the judgment of the Court of Appeal for Ontario pronounced October 10, 2014. A court order issued in October, 2013 awarding custody of two children to their father, with access to the mother.  The mother sought to appeal the order.  Her appeal was not brought in time and she was ordered to file a motion for extension of time if she wished to proceed with her appeal.  The applicant has brought several motions for extensions of time but has not complied with the terms imposed.

36152 Gill v. Human Rights Tribunal of Ontario, et al.  (Human rights – Discrimination – Age – Retirement at age 60)

On appeal from the judgment of the Court of Appeal for Ontario pronounced September 5, 2014.  The applicant was required to retire from his position as a suppression firefighter when he turned 60, pursuant to the collective agreement between the Hamilton Professional Fire Fighters’ Association (the “Association”) and the City of Hamilton (the “City”).  The City offered him accommodation in the form of a position as a communications officer.  He refused.  In early 2011, the applicant filed applications with the Human Rights Tribunal of Ontario against the City and the Association alleging that the mandatory retirement provision in the collective agreement discriminated against him on the basis of age, contrary to s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19.  The Association filed a request with the Tribunal for a summary hearing. It maintained that there was no basis upon which the Tribunal could find a violation of s. 5 of the Code due to the Tribunal’s own decision, rendered 14 months earlier, in Espey v. London (City), 2008 HRTO 412.  In that case, the Tribunal had upheld a similar mandatory retirement provision contained in the collective agreement between the City of London and that city’s Fire Fighters’ Association.  The Human Rights Tribunal granted the Association’s request for a summary hearing and dismissed the applications. The Ontario Superior Court of Justice dismissed the application for judicial review and the Court of Appeal dismissed the appeal.