APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Office of the Children's Lawyer v. John Paul Balev, Catherine-Rose Bagott (Ont.)
Charter of Rights – Right to security of person – Family law
The father and mother were married in Canada in 2000. The following year, they moved to Germany where they obtained permission to live and work there. Their children were born in Germany in September, 2000 and in December, 2005 but are Canadian citizens. The family resided together in Germany until April, 2013 when the parents separated for a final time. The father and mother agreed that the mother would return to Canada with the children for educational purposes and that they could remain there until August 15, 2014. The mother and children arrived in Canada in April, 2013. In March, 2014, the father purported to revoke his consent. He commenced a Hague Convention application in Germany and a further one in Ontario. He also applied for custody of the children in Germany. The German court held that the children should remain with their mother in Canada. On appeal, the court determined that Germany lacked jurisdiction as the children were not German citizens and were resident in Canada at the time. Further, Canada had become their habitual residence over the course of 18 months. The father’s German Hague application and appeal were also unsuccessful on the grounds that the children were no longer habitually resident in Germany at the time of the application. The father then pursued his Hague application in Ontario. In April, 2015, the application judge in Ontario ordered that the Office of the Children’s Lawyer intervene. The OCL advised the court that neither child wished to return to Germany. A judge of the Ontario Superior Court granted the Father’s application for return of the children to Germany under terms of Hague Convention. The Mother’s appeal to the Ontario Superior Court was successful and the Ontario Court of Appeal allowed the Father’s subsequent appeal. Motions for a stay at both the Ontario Court of Appeal and the Supreme Court of Canada were both dismissed.
Attorney General of Quebec v. Alliance du personnel professionnel et technique de la santé et des services sociaux, Catherine Lévesque, Syndicat de la fonction publique et parapublique du Québec Inc., Fédération interprofessionnelle de la santé du Québec, Guy-Philippe Brideau, Nancy Bédard, Syndicat des employé(e)s de l’Université de Montréal, Sylvie Goyer, Conseil provincial des affaires sociales, Johanne Harrell, Josée Saint-Pierre, Ghyslaine Doré, Conseil provincial de soutien scolaire, Louise Paquin, Lucie Fortin, Syndicat des professionnelles et professionnels de Laval-Rive-Nord, CUPE 5222, Syndicat des fonctionnaires municipaux de Montréal (CUPE), Local 429, Local 3134 of the Canadian Union of Public Employees, Employé‑es de bureau de la Ville de Lorraine, Henriette Demers, Local 930 of the Canadian Union of Public Employees (FTQ), Fernande Tremblay, Canadian Union of Public Employees, Local 4503, Josée Mercille, Canadian Union of Public Employees, Local 3642, Chantal Bourdon, Conseil d’intervention pour l’accès des femmes au travail (CIAFT) du Québec inc., Association de psychologues du Québec, Syndicat des employées et employés professionnels‑les et de bureau (CLC‑FTQ), Local 578, Lise Audet, Syndicat québécois des employées et employés de service, Local 298 (FTQ) - and - Conseil du Trésor, Commission des normes, de l’équité, de la santé et de la sécurité du travail, formerly Commission de l’équité salariale (Que.)
Charter of rights – Right to equality – Discrimination based on sex
The Attorney General of Quebec seeks to appeal a decision of the Quebec Court of Appeal upholding the unconstitutionality of ss. 76.3, 76.5 and 103.1 of the Pay Equity Act, R.S.Q., c. 12.001. Those sections were enacted in 2009 under the Act to amend the Pay Equity Act,SQ 2009, c. 9.
The provisions were challenged, inter alia, by unions representing employees working in predominantly female job classes. They alleged that the sections had the effect of substantially reducing the rights and benefits conferred on them by the Pay Equity Act as enacted in 1996, which, in their view, was contrary to ss. 15 and 52 of the Canadian Charter of Rights and Freedoms and ss. 10, 16, 19, 50.1 and 52 of the Charter of human rights and freedoms.
Under the 2009 reform, among other things, the jobs concerned were reviewed every five years to determine whether there were changes to them that justified a compensation adjustment, and there were no retroactive payments during the review process. The Quebec Superior Court declared the sections of Pay Equity Act unconstitutional. The Court of Appeal dismissed the appeal.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Guo Wen (Scott) Chen v. Her Majesty the Queen (B.C.)
Charter of Rights – Criminal law – Search and Seizure
The sealing order that accompanied the warrant against the applicant, bore the handwritten signature of the justice of the peace, followed by the justice’s name, printed in the same way as on the warrant. The justice did not sign the search warrant. The body of the order referred to a search warrant issued on July 25, 2011. At 5:23 p.m. on July 26, 2011, the police executed the warrant on the applicant’s home with the assistance of an emergency response team. The police made dynamic simultaneous entries to the garage, front door and rear of the home and rammed the front door of the house several times to gain access. At the applicant’s residence, the police seized a number of items including: methamphetamine and cocaine, a Glock model 17 semi-automatic handgun and a magazine containing ammunition therefor. The trial judge held that the search warrant was valid. The trial judge held that there was a s. 8 Charter breach, but the evidence was admitted pursuant to s. 24(2) of the Charter. The applicant was convicted of possession for the purposes of trafficking and several charges relating to possession of an unregistered handgun. The conviction appeal was dismissed.
Mohd Ali Hirji, also known as Mohamedali Hirji Mohamed Lalani, Parin Mohd Ali Hirji, also known as Parin Mohamedali Hirji Lalani v. Owners Strata Corporation Plan VR 44 (B.C.)
Civil Procedure – Appeals
The applicants Mohd Ali Hirji and Parin Mohd Ali Hirji commenced an action against the respondent Owners Strata Corporation Plan VR 44, for negligence and breach of contract. They claimed damages over $1 billion dollars for the respondent’s alleged failure to repair and maintain common property adjacent to the applicants’ townhouse unit. The Supreme Court of British Columbia dismissed the applicants’ action and awarded special costs to the respondent. The applicants filed a notice of appeal, and later sought an extension of time to file their appeal documents, but Newbury J.A. refused the extension. She was of the view that granting an extension could not be justified in the circumstances. A panel of three judges of the Court of Appeal unanimously dismissed the application to review the decision refusing an extension of time. The Court of Appeal found that the applicants “have not shown Newbury J. was wrong in law, wrong in principle, or misconceived the facts” (para. 17).
Capilano Mobile Park, a partnership v. Chiefs and Council of the Squamish Indian Band, Byron Joseph on his own behalf and on behalf of the Squamish Indian Band and all members of the Squamish Indian Band (B.C.)
Restitution – Unjust enrichment – Contracts
The applicant (the “Partnership”) was granted a series of permits to operate a trailer park which the partners’ father had constructed on reserve lands of the Squamish Nation. The most recent ten-year permit expired in 2008, with no right of extension or renewal. The permit agreement allowed the Partnership to remove its chattels and buildings within 90 days of the permit expiry, and provided that there would be no compensation payable for any improvements to the lands or for the business operated there. It also provided that the Partnership would be invited to submit a proposal if at the end of the term the Squamish Nation decided to operate a mobile home or trailer park on the lands.
Attempts to negotiate a new permit agreement failed. The Partnership continued to occupy the trailer park and paid monthly fees until May 2010, allegedly stopping to put pressure on the Squamish Nation to accept disputed terms. After giving notice, the Squamish Nation succeeded in an action to regain possession of the property. The Partnership was ordered to pay $497,403.29 in damages for the respondent’s loss of use of the lands, from which was deducted the fair market value of the Partnership’s interest in the chattels, which were sold to the Squamish Nation by court order. The Partnership commenced an action against the respondents claiming conversion and unjust enrichment in respect of its business. In an application for a summary trial, the Supreme Court of British Columbia dismissed the Partnership’s claims, and its appeal was dismissed by the British Columbia Court of Appeal.
Saskatchewan Joint Board, Retail, Wholesale And Department Store Union v. Saskatoon Co-operative Association Limited, United Food And Commercial Workers, Local 1400, Saskatchewan Labour Relations Board (Sask.)
Administrative law – Procedural fairness
Safeway operated a grocery store located on Circle Drive in Saskatoon (Circle Store). Safeway’s employees are represented in the province by the applicant, Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (RWDSU). The respondent, Saskatoon Co-operative Association Limited (Co-op), purchased and began operating the Circle Store. Co-op’s employees are represented by the respondent, United Food and Commercial Workers, Local 1400 (UFCW). The two unions applied to the Saskatchewan Labour Relations Board to be the bargaining agent for the employees at that location. The Court of Queen’s Bench of Saskatchewan dismissed the application for judicial review. The Court of Appeal allowed the appeal.
Ira J. Day v. 407 ETR Concession Co. (Ont.)
Limitation of actions – Basic limitation period – Discovery of claim
The respondent, 407 ETR, operates Highway 407 and has authority to collect tolls from those who use it pursuant to an agreement it has with the Province of Ontario. Mr. Day, applicant, uses Highway 407 on a regular basis and has a consistent record of refusing to pay his toll debts. In 2013, 407 ETR sued him for payment of debts owed since December 2010. In his statement of defence, Mr. Day argued the claim was barred by the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24. In a pre-trial motion, the motion judge determined, among other things, that the fifteen-year limitation period set out in the lease agreement signed by the parties was unenforceable, and that the presumptive two-year limitation period applicable to Mr. Day had expired prior to the commencement of 407 ETR’s action. The Court of Appeal allowed the appeal.
Gilbert Joseph Raoul Royer, Denis Joseph Adélard Nadeau v. Attorney General of Quebec, Director of Criminal and Penal Prosecutions, Attorney General of Canada (Que.)
Damages – Civil procedure – Pleading
The applicants claimed $29 million in damages. Through their action, they wanted the Superior Court to recognize their fundamental rights as [translation] “human beings”, they sought damages from the respondents in the form of a life annuity and they wanted $250,000 to be given to charity each year for the next 20 years. The Attorney General of Quebec, the Attorney General of Canada and the Director of Criminal and Penal Prosecutions opposed the action brought by the applicants and asked that it be dismissed. The Quebec Superior Court dismissed the application. The Court of Appeal allowed the motion to dismiss appeal.
R.K., C.K. v. Minister of Citizenship and Immigration (FC)
Immigration law – Convention refugees
R.K. and her infant son C.K. are citizens of Ethiopia. They came to Canada in 2013 and made a refugee protection claim on the basis of political opinion. R.K. claimed that she feared persecution arising from her activities on behalf of a political party in her country of origin.
The Refugee Protection Division of the Immigration and Refugee Board dismissed the claim, finding that R.K. lacked credibility. R.K. appealed to the Refugee Appeal Division. She filed new evidence where she alleged having been sexually assaulted while in police detention in Ethiopia. The Appeal Division admitted the new evidence and decided to convoke an oral hearing of the appeal on the issues of: (1) whether the new allegation is credible and trustworthy; (2) if so, whether R.K. and her son are entitled to refugee protection under ss. 96 or 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and, in particular, whether it is established that they have rebutted the presumption of state protection; and (3) all new evidence. The Appeal Division dismissed the claim on the basis that the new allegation lacked credibility.
Stipan Ivancic, also known as Steve Ivancic v. Jerry Palkowski, Jane Palkowski (Ont.)
Unjust enrichment – Illegal contract
The Palkowskis and Mr. Ivancic entered into a sham agreement for the purchase and sale of the Palkowskis’ home. It was intended to defraud the Palkowskis’ creditors into believing that they could not pay their debts. They also entered into an oral agreement whereby the Palkowskis would continue to live in the house and reimburse Mr. Ivancic for his costs related to the house, and Mr. Ivancic would convey the house back to the Palkowskis. The Palkowskis kept their side of the agreement, but Mr. Ivancic refused to re-convey the property.
The Palkowskis sued, claiming that Mr. Ivancic held the property in express trust for them, unjust enrichment, constructive trust, and proprietary estoppel, as well as seeking re-conveyance of the property pursuant to s. 37(1) of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34. The former claim was dismissed on summary judgment because the agreement was not in writing. That dismissal was upheld on appeal. The remaining issues went to trial.
The trial judge granted judgment to the Palkowskis and ordered a re-conveyance based on unjust enrichment. He gave the Palkowskis credit for the difference between the value of the house upon sale as compared to the sale price, and for some of the improvements they had made since the sale. The Palkowskis were to pay Mr. Ivancic certain amounts to reflect his contributions, including compensation for his initial investment. The final payment was not to fall below the value of the initial investment as of the valuation date. The Court of Appeal dismissed the appeal.
Louis Kakoutis v. Sanjeev Rishi, Shalini Bhardwaj (Ont.)
Charter – Civil procedure – Parties – Parties under disability
The underlying lawsuit concerns a residential real estate transaction that did not close. The respondents were the purchasers. The respondents claim that they had a valid agreement of purchase and sale with the applicant’s mother, Ruby Kakoutis, and her daughter, Sylvia Kakoutis, to buy their house on Muirhead Road in Toronto. The respondents paid a deposit of $10,000 to the real estate agency representing the vendors. In the lawsuit, the respondents seek the return of their deposit. They also claim damages arising from the fact that to buy a replacement or substitute house, they had to pay a higher sum and incurred other expenses. In addition to the vendors named in the agreement of purchase and sale, the respondents have included a number of other defendants in the lawsuit, including the applicant, Mr. Louis Kakoutis. He is the son of Ruby Kakoutis and the brother of Sylvia Kakoutis. It is alleged that he wrongly advised the respondents’ real estate agent that his mother had a valid power of attorney to sign the agreement of purchase and sale on behalf of his sister, a representation from which the vendors later resiled. It is also alleged that Mr. Kakoutis harassed the respondents and their family once issues arose concerning the closing of the transaction. While the respondents brought a motion seeking the appointment of a litigation guardian for Mr. Kakoutis, the motion judge determined that he did not have current medical information that would support such an order. However, he determined that a mental examination was warranted, under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, given previous orders of the court and expert reports concerning Mr. Kakoutis’ conduct. The Court of Appeal held that the motion judge’s decision to order a mental examination was a discretionary decision, which was entitled to deference, and there was no basis to interfere. It therefore dismissed the appeal.
Ade Olumide v. Conservative Party of Canada (Ont.)
Elections – Constitutional law
Mr. Olumide wished to contest the 2015 Kanata/Carleton nomination of a Conservative candidate and the 2017 Conservative Party Leadership. He was prevented from doing so and sought relief for human rights violations. The Ontario Superior Court of Justice stayed the action and application that the applicant was pursuing in Federal Court of Canada. The Court of Appeal dismissed the appeals and motions.
Apotex Inc. v. Eli Lilly Canada Inc., Icos Corporation, Minister of Health (FC)
Intellectual property – Patents – Medicines
Apotex Inc. sought a Notice of Compliance (“NOC”) from the Minister of Health to market its generic version of tadalafil, a drug used to treat, inter alia, erectile dysfunction (“ED”) Eli Lilly markets tadalafil under its brand name, Cialis. Its 784 Patent is listed against Cialis on the Patent Register. Apotex served Eli Lilly with its Notice of Allegation on August 16, 2013, alleging that the 784 Patent was invalid on several grounds. Eli Lilly filed an application to prohibit the Minister from issuing a NOC to Apotex until after the expiry of the 784 Patent on July 11, 2016. Apotex argued that the 784 Patent was invalid because it was an impermissible double patenting of the invention claimed in the earlier 377 Patent. That patent was also licenced to Eli Lilly and pertained to a number of compounds including tadalafil for use as a medicine in humans. Apotex also alleged that the 784 Patent was invalid for insufficiency because it failed to provide guidance on how to produce hydrate forms of the compounds claimed. The Federal Court granted the Respondent’s application. The Court of Appeal dismissed the appeal.
É.D. v. Attorney General of Quebec (Que.)
Civil procedure – Leave to appeal
The Ministère de l’Emploi et de la Solidarité sociale claimed $78,512.20 from the applicant in repayment of social solidarity benefits paid to him in previous years. The applicant brought a proceeding against that claim. The Administrative Tribunal of Québec (ATQ) dismissed the applicant’s application for review. The applicant filed an application for judicial review with the Superior Court, which refused to review the ATQ’s decision. The Court of Appeal dismissed the applicant’s motion for leave to appeal.
Robin James Goertz v. Condominium Corporation No. 311443, Condominium Management Services Ltd. (Alta.)
Property – Condominiums
Mr. Goertz purchased four units in a condominium building operated by the respondents, but failed to pay condo fees levied on the units for several months. He eventually brought the fees into good standing, but failed to pay accrued interest charges for some time. In addition, there was an added cost of $115.50 for the services of a locksmith, so the respondents could enter one of Mr. Goertz’s vacant units and turn off a tap that had been left running for two weeks, flooding adjacent areas. When Mr. Goertz failed to respond to demand letters seeking payment, the respondents filed caveats on title of his units. The respondents then issued a statement of claim for recovery of the indebtedness and for foreclosure. Mr. Goertz defended that action and responded with a counterclaim, seeking damages against both the respondents and the condominium manager. Both parties sought summary judgement. The Court of Queen’s Bench of Alberta granted the Respondent’s motion for summary judgment. The Court of Appeal dismissed the Applicant’s appeal.
Ashley Michelle Lee Rohleder v. Dawn Rodgers, The Momentum Centre Inc. (Man.)
Charter of Rights – Discrimination – Employment law
The applicant claimed damages for unjust dismissal and negligent misrepresentation against the respondents. The Momentum Centre is a not-for-profit corporation that receives funds from the provincial and federal governments to provide work experience for young people who are on income assistance. The respondent, Ms. Rodgers is the executive director there. Eligible young people were required to take a six week unpaid training course following which they would be placed with a cooperating workplace and paid $13 per hour while working there. During placement period, generally six months, they were paid by the Momentum Centre. The applicant entered the program in August 2014. She began a placement in a law office in November, 2014. On December 1 and 2, 2014, she emailed the law office to let them know that she would not be attending work due to an emergency. Two workers from Momentum attended at her residence as they had been unable to reach her, not knowing that she had returned to work on the 2nd of December. She was dismissed from the program the following day and given one week’s pay. The Centre claimed she was dismissed for cause for not following the program rules and for surreptitiously recording sessions with other participants. The Court of Queen’s Bench of Manitoba granted the Respondent’s motion for summary judgment. The Court of Appeal dismissed the Applicant’s appeal.
Sukhvir Thethi v. Jastinder Manchanda (Ont.)
Family law – Family assets – Financial disclosure
The parties separated in 2013 after a ten year marriage. The parties jointly own a rental unit in which wife occupied the top floor and two other units were rented out. She commenced an action for, inter alia, an unequal division of net family property and spousal support. The wife brought a motion to amend her pleadings and to strike the husband’s pleadings for failure to comply with court orders requiring him to make proper financial disclosure and to deposit the rental income into a joint account with the wife. The Court of Appeal dismissed the Applicant’s appeal.
Constellation Brands Inc., Constellation Brands Québec Inc., Constellation Brands Canada Inc., Sumac Ridge Estate Winery Ltd., and Franciscan Vineyards Inc. v. Domaines Pinnacle Inc. (FC)
Intellectual property – Trade-marks – Confusion
The respondent, Domaines Pinnacle Inc. (“Pinnacle”), produces apple-based alcoholic and non-alcoholic beverages and foods. In 2004, it applied to register a word and design mark in relation to the sale of its products. The applicants (“Constellation”) are producers and distributors of wine, and they opposed Pinnacle’s application on the basis that its applied-for mark was confusing with their word mark “Pinnacles” which was registered in relation to the sale of grape wine. The Trade-Marks Opposition Board (“Board”) rejected Constellation’s statement of opposition. The Federal Court allowed Constellation’s appeal on the basis that the Board erred in its determination of the degree of resemblance between the marks. In particular, it found that the Board should have considered all the potential uses of Constellation’s mark, not just its actual use. The Federal Court of Appeal allowed Pinnacle’s appeal. In its view, while the Federal Court correctly stated that the applicable standard of review was reasonableness, it effectively applied the correctness standard. Applying the reasonableness standard, the Federal Court of Appeal concluded that the Board’s decision was reasonable.
Abebe Tilahun v. Ministry of Public Safety Canada and Her Majesty the Queen (Ont.)
The applicant, Mr. Tilahun claims that since 2007 undercover agents have engaged in authorized surveillance of him and have persistently attacked him with remote-controlled laser radiation. Mr. Tilahun brought an action against the respondents claiming Charter violations and seeking damages. The respondents sought a motion to strike Mr. Tilahun’s Statement of Claim. The Superior Court granted the motion to strike. The Superior Court refused to hear a further motion by Mr. Tilahun, for default judgment, as the matter had already been dismissed.
Mr. Tilahun appealed to the Ontario Court of Appeal. In July, 2016, the Registrar of the Ontario Court of Appeal informed Mr. Tilahun that the appeal had not been perfected and the appeal was dismissed for delay. The motion to set aside the Registrar’s dismissal order and for an extension of time to perfect the appeal was dismissed by Justice Roberts, a single judge of the Court of Appeal.
Mitra Kermani, Hassan Hojjatian v. Intact Insurance Company, Axa Insurance (Ont.)
Contracts – Breach – Appeal – Leave to Appeal
The applicants claimed under a homeowner’s insurance policy. They claimed that water damage to their basement, basement bathroom, and garage roof was caused by a rain storm and defective plumbing. Four reports were commissioned with respect to the nature of the damages and its causes. Intact Insurance Company refused to pay the claim, citing exclusion clauses in the insurance policy. Mr. Hojjatian and Ms. Kermani commenced a claim for damages and punitive damages. They applied for summary judgment. They also were involved in litigation with Toronto-Dominion Bank in relation to enforcement of a writ of possession against the home and against Loblaws Inc. in relation to a business dispute. The Court of Appeal dismissed the appeal.
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