36238 Her Majesty the Queen v. Erin Lee MacDonald (Charter of Rights – Mandatory minimum sentences – Cruel and unusual punishment – Criminal law – Sentencing)

On appeal from the judgment of the Nova Scotia Court of Appeal. Mr. MacDonald, respondent, was prosecuted by indictment and ultimately convicted of possessing a loaded restricted firearm contrary to s. 95 of the Criminal Code. That offence carries with it a minimum sentence of three years’ incarceration (s. 95(2)(a)(i)). Mr. MacDonald’s s. 95 conviction was overturned by the Court of Appeal (2012 NSCA 50), but restored by this Court On January 17, 2014 (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37). The Court remitted the matter to the Court of Appeal for sentencing, and in particular, for a determination on the constitutionality of s. 95(2)(a)(i) of the Criminal Code. This application for leave to appeal stems from the Court of Appeal’s decision on that issue. The Court of Appeal unanimously concluded that the mandatory minimum sentence imposed by s. 95(2)(a)(i) infringed s. 12 of the Charter and could not be saved by s. 1. The Court was divided, however, on the appropriate sentence to be imposed in this case. The majority found that the appropriate sentence was a period of incarceration of 18 months. However, in the circumstances of this case, it stayed the enforcement of that sentence. Beveridge J.A., dissenting, would have imposed a sentence of time served.

36220 Attorney General of Canada v. Jean-Marc Poulin de Courval, In His Capacity a Trustee in Bankruptcy to Sylvain Girard (Tax law — Bankruptcy and insolvency — Federal income)

On appeal from the judgment of the Quebec Court of Appeal. In May 2009, Mr. Girard filed for bankruptcy, declaring debts totalling $1,742,198. In July 2009, the Canada Revenue Agency (“CRA”) filed a proof of claim with the respondent as trustee in the amount of $89,225. On January 22, 2010, the CRA filed a claim in the amount of $731,774. The sum was in addition to the previous claim, but as an unsecured claim. The CRA issued “Notices of Reassessment” attesting to the addition of this latter claim. These notices were for fiscal years 2004 and 2005 and concerned capital gains and income that Mr. Girard had allegedly failed to declare. Mr. Girard’s bankruptcy trustee disallowed the amended proof of claim, concluding that no leave to initiate proceedings had been solicited or obtained from the Quebec Superior Court, under the provisions of subsection 69.4 of the Bankruptcy and Insolvency Act (BIA). The Notice of Assessment constitutes a measure taken in view of recovery of a provable claim and is therefore dependent on a decision of the court, in this case the Superior Court, to lift the stay under paragraph 69.3 BIA. The Quebec Court of Appeal dismissed the appeal.

36285 [W.P.], [M.P.], [E.P.] v. The Queen, Attorney General of Alberta (Civil Procedure – Limitations – Class proceedings)

On appeal from the judgment of the Court of Appeal of Alberta. WP, MP and EP were students and residents at the Alberta School for the Deaf. They allege that teachers and staff abused them and abused other students physically, sexually and/or emotionally between 1955 and 1995. They allege systemic negligence in the creation, operation, and management of the school allowed the abuse. They allege physical injury, anxiety, depression, post-traumatic stress disorder, pain, suffering, decrease in ability to learn, and decreased enjoyment of life. WP, MP and EP left the school in 1977, 1970 and 1991, respectively. In 2008, they commenced a claim based in negligence, vicarious liability, breach of trust and breach of fiduciary duty. They applied for certification under the Class Proceedings Act, S.A. 2003, c. C-16.5. The respondents cross-applied for summary judgment on the basis that the claims were barred under s. 3(1)(b) of the Limitations Act, R.S.A. 2000, c. L-12. The Court of Queen’s Bench granted the application for summary judgment and dismissed the action. The Court provisionally certified the action as class proceeding in the event that the summary judgment was reversed on appeal. The Court of Appeal of Alberta dismissed the appeal and declared the appeal from the certification decision moot.

36269 Louis Peter Tekavec, Louis Peter Tekavec doing business as Goldcrest Apartments v. Her Majesty the Queen in Right of the Province of British Columbia (Torts – Negligence – Damages)

On appeal from the judgment of the Court of Appeal for British Columbia. On June 2, 2007, while visiting friends who were tenants in a building owned by the applicant, Mr. Tekavec, Mr. Jack leaned on a defective railing and fell three stories from the balcony, sustaining injuries. He commenced an action against Mr. Tekavec, claiming damages pursuant to the Occupiers Liability Act, R.S.B.C. 1996, c. 37. He also notified the Province of his claim as required by s. 4 of theHealth Care Costs Recovery Act, S.B.C. 2008, c. 27 (the “Act”). He was awarded damages of approximately $322,000 based on the trial judge’s finding that Mr. Tekavec was aware of the defective balcony railing and failed to inspect and repair it. The respondent, British Columbia, did not intervene in the action but later brought a separate action against Mr. Tekavec under s. 8 of the Act, seeking recovery of $68,061.46 for Mr. Jack’s health care costs. In response to the civil claim, Mr. Tekavec served a response and a third party notice against Mr. Jack and the two tenants of the apartment, alleging that their negligence was the sole cause of the injuries. The Province moved to strike the response to the civil claim and the third party notice on the basis that they were barred by estoppel. Mr. Tekavec cross-applied to strike the notice of civil claim on the ground that recovery for health care costs had been raised and decided in the original trial and that the Province was estopped from pursuing it. The Province’s application to strike the applicant’s response and a portion of third party claim was granted. The applicant’s cross application to strike out the Province’s notice of civil claim was dismissed. The Court of Appeal for British Columbia dismissed the applicant’s appeal.

36148 Martin Cousineau, Francine Morrissette v. Attorney General of Quebec (Civil procedure – Administrative law – Regulated professions)

On appeal from the judgment of the Quebec Court of Appeal. The syndic of the Ordre des audioprothésistes du Québec filed a disciplinary complaint against the applicant, accusing him of illegally advertising in Lobe Magazine and on the Lobe website. The applicant sent the Attorney General of Quebec (“AGQ”) a first notice under art. 95 C.C.P. to invalidate art. 5.08 of the Code of ethics of hearing-aid acousticians given that this provision was contrary to the Canadian Charter. He subsequently sent a new amended notice to the AGQ under art. 94 C.C.P., and submitted it to the disciplinary council of the Ordre des audioprothésistes du Québec. The third party, Lobe Réseau Inc., intervened in the case pending before the disciplinary council of the Ordre des audioprothésistes du Québec by also submitting a notice to the AGQ under art. 95 C.C.P. and a motion to declare invalid art. 5.08 of the Code of ethics of hearing-aid acousticians. Before the disciplinary council, the applicant filed a motion for a stay of proceedings, which was dismissed. The hearing on the merit of the disciplinary complaint was to be held on April 23, 24 and 25, 2014, but the applicant turned to the Superior Court to have the provision declared invalid on the same constitutional grounds. The Quebec Superior Court allowed the motion to dismiss filed by the Attorney General of Quebec and dismissed the applicants’ motion for a declaration of invalidity with respect to s. 5.08 of Code of ethics of hearing-aid acousticians and for an order to safeguard. The Quebec Court of Appeal dismissed the appeal.

36254 JH Drilling v. Alberta Natural Resources Conservation Board, Parsons Creek Aggregates (Administrative law — Natural Resources Conservation Board)

On appeal from the judgment of the Court of Appeal of Alberta. Parsons Creek Aggregates Ltd. applied for regulatory approval for constructing and operating a limestone quarry. JH Drilling Inc. objected, saying that it had explored some of the same lands and had applied for a Surface Materials Lease to develop clay, sand and gravel on those lands. The NRCB found that JHD did not have standing in respect of the Parsons application because it was not “directly affected” by the project within the meaning of the Natural ResourcesConservation Board Act, R.S.A. 2000, c. N-3. Specifically, it did not own or lease the land subject to the lease application. As there was no objection to the application from a person with standing, it was not necessary to hold a public hearing. Parsons’ application was approved by written decision of the NRCB in February 2014. JHD sought and was granted leave to appeal, but a motion to reargue was granted. Leave to appeal that decision was denied. Leave to appeal that decision and the previous decision, and a motion to stay those leave applications, were also denied. A motion for leave to reargue those applications for leave to appeal was then dismissed, and directions on costs were given.

36199 Humanics Universal Inc., Ranjit Perera v. City of Ottawa (Charter of Rights – Freedom of expression – Right to liberty)

On appeal from the judgment of the Court of Appeal for Ontario. The applicants applied for a plan of subdivision for a 0.8 hectare property in Cumberland Ontario. The respondent imposed conditions for approval, including requiring a 6 meter access allowance within the slope setback. The applicants appealed many conditions to the Ontario Municipal Board (“OMB”) and argued that some contravened their Charterrights. The OMB granted the respondent’s motion to strike theCharter issues. Nine months later, the applicants brought a motion to have the earlier decision reconsidered. The OMB Chair refused on the basis that the motion had not been brought within the thirty day limitation period and it was not in the public interest to reopen the decision in this case. The applicants brought a motion for leave to appeal that decision to the Superior Court of Justice, Divisional Court. Justice O’Neill of that Court denied leave to appeal. The applicants unsuccessfully sought leave to vary Justice O’Neill’s decision. A motion for leave to appeal to the Ontario Court of Appeal was dismissed.

36106 City of Lévis v. Fraternité des policiers de Lévis Inc. - and - Francine Beaulieu, in her capacity as grievance arbitrator  (Labour relations – Collective agreements)

On appeal from the judgment of the Quebec Court of Appeal. The City of Lévis suspended Martin Légaré, a unionized police officer, for administrative reasons and without pay pending the conclusion of criminal proceedings instituted against him. The Fraternité des policiers de Lévis Inc. challenged this decision in a grievance. It argued that Mr. Légaré should not have been suspended without pay and claimed moral and exemplary damages on the ground that the suspension was unreasonable or malicious.

The arbitrator allowed the grievance and substituted a suspension with pay for the suspension without pay. The Superior Court set aside the decision, but the Court of Appeal allowed the appeal. It recognized that the arbitrator’s decision was flawed, but that this did not make the decision unreasonable. The collective agreement allowed the adjudicator to cancel the administrative penalty and to determine the appropriate compensation or measure, which she did. The arbitrator’s interpretation according to which, in light of the collective agreement and the principles set out by the Supreme Court in Cabiakman, the administrative suspension should in principle be imposed with pay [TRANSLATION] “undoubtedly fell within the range of reasonable outcomes defensible in respect of the collective agreement” (para. 32).

36030 Catherine Leuthold v. Canadian Broadcasting Corporation et al (Intellectual property – Copyright infringement – Costs)

On appeal from the judgment of the Federal Court of Appeal. The applicant, a professional photo-journalist, sued the respondent for copyright infringement in respect of the use of five of her photographs in a documentary about the September 11, 2001 attacks on the World Trade Center. She sought damages in the amount of twenty million dollars, and was awarded damages in the amount of $19,200. Notwithstanding her success, she was ordered to pay respondents double costs because she recovered less than the settlement offered by the respondents. The applicant appealed but her appeals were dismissed.

36240 Jason Daoust-Crochetiere v. Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of Natural Resources for the Province of Ontario (Crown law — Crown liability — Proceedings against the Crown)

On appeal from the judgment of the Court of Appeal for Ontario. Mr. Daoust-Crochetiere sustained an injury on a boat launch at the Wasaga Beach Provincial Park on June 13, 2010. Although he knew he had been injured and knew who was responsible, he did not believe that the injury was as severe or as permanent as it proved to be. Mr. Daoust-Crochetiere gave the Crown notice of the accident on October 27, 2010. The Respondent moved for summary judgment and dismissal of the action on the grounds that notice as required by the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, had not been given.

The motions judge granted summary judgment and dismissed the claim. The Court of Appeal dismissed Mr. Daoust-Crochetiere’s appeal.

36282 V. I. Fabrikant v. Her Majesty the Queen in Right of Canada, Correctional Service Canada (Civil Procedure – Appeals – Courts)

On appeal from the judgment of the Federal Court of Appeal. The applicant has been in prison for 22 years and has been designated as a vexatious litigant. He applies for leave to appeal a decision of the Federal Court of Appeal, with whom he was granted leave to file a Notice of Appeal from an Order of Prothonotary Tabib. That Order dismissed his motion for a waiver of the filing fee for each of two motions he had filed under s. 40(3) of the Federal Courts Act. The applicant was also granted leave to file a Notice of Appeal from four directions of Scott J. of the Federal Court, each denying him leave to commence proceedings concerning various matters. The Federal Court of Appeal dismissed the appeal of Prothonotary Tabib’s Order and quashed the appeals from the directions of Scott J. on the basis that they had been made pursuant to s. 40(4) of the Federal Courts Act and were therefore final, with no right of appeal pursuant to s. 40(5) of that Act.

36293 Conrad M. Black v. Her Majesty the Queen (Taxation – Income Tax – Residency)

On appeal from the judgment of the Federal Court of Appeal. As a resident of Canada for the purposes of the ITA, the applicant is required to pay tax on his worldwide income. In 2002, the applicant was also a resident of the U.K. for the purposes of U.K. tax. Under sub-article 4(2)(a) of theConvention, which provides tie-breaker rules for dual residents, the applicant was deemed to be a resident of the U.K. and not Canada. The applicant challenged assessments by the Minister of National Revenue (“Minister”) for certain items which could not be included in his income if he were not a resident for the purposes of the ITA, and brought a motion for determination of the question of law. The Tax Court of Canada held that although the applicant was deemed to be a resident of the United Kingdom under the Convention, the Minister could assess tax on the basis that he was a resident of Canada for the purposes of the ITA. It also held that the Minister is permitted to tax the applicant’s non-United Kingdom income, not just his income from Canadian sources. The Federal Court of Appeal dismissed the appeal.

36299 O.S.S. v. C.K.S.(B.) (Family law – Custody)

On appeal from the judgment of the Court of Appeal of Alberta. The father and mother married in England in 2007 and separated in 2010. They have a son who was six years of age at the time of trial. He has lived with his mother since birth. At the time of trial, the father had access two weekdays per week and one overnight visit on the weekend. Both parties sought sole custody of the child. The Court of Queen’s Bench of Alberta awarded the mother sole custody of the child with access for the father. The Applicant’s appeal was dismissed by the Court of Appeal of Alberta.

36213 Ali Raza Jafri, et al. v. Minister of Citizenship and Immigration (Charter of Rights – Immigration – Permanent residents)

On appeal from the judgment of the Federal Court of Appeal. The Respondent, Minister of Citizenship and Immigration refused to process the applications of approximately 1,400 foreign nationals who applied before February 27, 2008 for permanent resident visas as members of the federal skilled worker class. The Minister’s refusal to process the Applicants’ permanent resident visa applications was based on s. 87.4(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The provision was added to theIRPA by Bill C-38, known as the Jobs Growth and Long-term Prosperity Act. It was proclaimed in force on June 29, 2012. The amendment provides that applications for permanent residence as a member of the federal skilled worker class made before February 27, 2008 are terminated unless an officer had made a selection decision before March 29, 2012.

The Applicants all applied for a permanent resident visa as a member of the federal skilled worker class before February 27, 2008. Some of the applications were submitted in 2005, others in 2007. None of the applications were processed to completion. When the Minister refused to process the Applicants’ applications for permanent resident visas as members of the federal skilled worker class, based on s. 87.4(1) of the IRPA, the Applicants applied to the Federal Court for judicial review of the Minister’s refusal. They sought a number of remedies, including an order of mandamus requiring the Minister to process their permanent resident visa applications. They also filed Notices of Constitutional Question alleging that s. 87.4(1) violates the rule of law and the Canadian Charter of Rights and Freedoms. The applications for judicial review were heard together based on eight cases that were agreed to be representative of all of the others. The applications for judicial review were all dismissed. The subsequent appeals to the Federal Court of Appeal were also dismissed.