36843  Farhan Nur v. Her Majesty the Queen

(Ont.)

Charter — Search or seizure

A search warrant was executed against the property of the applicant, Mr. Nur, by the RCMP during its investigation following the shooting on Parliament Hill by Michael Zehaf-Bibeau on October 22, 2014. The Information to Obtain the search warrant (“ITO”) was dated May 26, 2015, and was prepared by a peace officer and member of the RCMP. The search warrant was issued by Alder J. of the Ontario Court of Justice. An application was made in August 2015 requesting the continued detention of the seized items for a period of not more than nine months. As part of the issuance of the search warrant, an order was made, pursuant to s. 487.3 of the Criminal Code, sealing all materials relating to the warrant until further order of a court of competent jurisdiction. Mr. Nur’s subsequent application to vary the sealing order was dismissed by Labrosse J. of the Superior Court. By the date of the hearing of that application, all seized items had been returned to Mr. Nur, and he has not since been charged.

36907  Rogers Communications Canada Inc. (formerly known as Rogers Communications Partnership), Telus Communications Company, Bell Mobility Inc. and Québecor Media Inc. v. Society of Composers, Authors, and Music Publishers of Canada (a.k.a. SOCAN)

(FC)

Courts – Appeal – Res Judicata – Administrative law – Estoppel

The applicants are providers of mobile telecommunication services and sell ringtones to customers as part of their business. At issue are the portions of musical works downloaded from a wireless carrier to a customer’s cellphone and stored in its memory for use as ringtones. The respondent collects, administers and distributes royalties collected for public performances of musical works on behalf of creators. The applicants unsuccessfully challenging certification of the initial Tariff 24, which treats the downloading of ringtones to cellphones as communications to the public by telecommunication. Subsequent decisions of the Supreme Court of Canada determined that downloads do not constitute communication to the public by telecommunication. After bringing an unsuccessful application before the Copyright Board of Canada to vary Tariff 24, the applicants commenced an action in Federal Court seeking an order declaring either that Tariff 24 is invalid in respect of ringtones, or outside the jurisdiction of the Board to certify. They sought to recover amounts paid to the respondent as royalties under Tariff 24 from November 2006 to July 2012. The respondent filed a defense and counterclaim seeking the payment of royalties the applicants had refused to pay. 

On a consent motion, the Federal Court ordered the pre-trial determination of six questions of law. Two questions are of relevance to this leave application. First, the Federal Court determined that the claim was not barred by res judicatabecause the earlier decision had not been final so as to evoke issue or cause of action estoppel. This determination was reversed by the Federal Court of Appeal. Second, the Federal Court determined that the Copyright Board had the jurisdiction to certify the disputed Tariff 24. This was confirmed on appeal.

36920  James D. Hole, Jack Henry Hole, Harry Bruce Hole, Hole Engineering Ltd., Kessa Holdings Ltd., and Eloh Enterprises Ltd. v. James F. Hole, Hole Consultants Ltd.

(Alta.)

Contracts – Interpretation

The applicants and respondents carried out construction projects as a joint venture.  In 1993, the applicants wanted the individual respondent to retire from the business and began drafting an agreement to solidify transition. Profits from a major ongoing project became a contentious issue in the process. The respondents insisted on being paid $1.6M. The applicants, whose business was not financially stable at the time, insisted on a sum of $600,000, the amount ultimately reflected in the transition agreement. Shortly before the transition agreement was finalized and executed, the applicants provided the respondents with the Letter of Understanding and Obligation for Payment of One Million Dollars (LOU). Pursuant to the LOU, the corporate respondent’s share of the profits was fixed at $1.6M, $600,000 of which was to be paid by the applicants’ successor companies and $1M at an unspecified later date, depending on the “success and financial stability” of the applicants’ business.

Shortly thereafter, the parties had a disagreement, and the respondents did not receive any financial information regarding the applicants’ successor companies for several years. In 2000, the respondents requested payment of the $1M obligation pursuant to the LOU. The applicants took the position that their only legal obligations were contained in the transition agreement, which they had fulfilled. The respondents commenced an action against the applicants claiming breach of contract. The Court of Queen’s Bench of Alberta dismissed the action. The Court of Appeal of Alberta allowed the appeal.

36927  Raymond Turmel v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36928  Robert Roy v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36929  Stephen Patrick Burrows v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36930   Cheryle M. Hawkins v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36937   John Turmel v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the marijuana for medical purposes regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act.(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36938   Terrance Parker v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMRA are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36939   Arthur Jackes v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36940  Elsie Gear v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the marijuana medical access regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the marijuana for medical purposes regulations, S.O.R./2013-119, which succeeded the MMRA are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the controlled drugs and substances act (“CDSA”)for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36941   Heidi Chartrand v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36991  Beverly Sharon Misener v. Her Majesty the Queen

(FC)

Constitutional law – Constitutional proceedings – Appeals and judicial review

Since February 2014, approximately 300 self-represented plaintiffs, including the applicant, have filed identical claims seeking declarations that the Marijuana Medical Access Regulations (“MMAR”), S.O.R./2001-227, which were repealed on March 31, 2014 and the Marijuana for Medical Purposes Regulations, S.O.R./2013-119, which succeeded the MMAR are unconstitutional. In the course of their actions, twenty-six plaintiffs, including the applicant, brought motions for interim constitutional exemptions from the Controlled Drugs and Substances Act(“CDSA”) for the personal use of marijuana pending trial of their actions. The Federal Court dismissed the motion for interim constitutional exemptions. The Federal Court of Appeal dismissed the appeal.

36951   Pierre Mailloux v. Jean-Claude Fortin, in his capacity as assistant syndic of the Collège des médecins du Québec

(Que.)

Law of professions – Discipline

The disciplinary council of the Collège des médecins du Québec convicted the applicant of various offences in connection with four complaints laid against him by the syndic of his professional order between 1999 and 2008. The complaint in issue alleged, inter alia, that the applicant had made unsuitable diagnoses of psychotic disorders, childhood schizophrenia and childhood psychosis in children and had prescribed neuroleptic drugs for them in high doses or in combination (counts 1 to 10), had acted similarly with adult patients (counts 11, 12 and 14) and had claimed professional fees for services whose cost had to be paid by a third party (counts 13 and 14). The disciplinary council imposed on him a temporary striking off the roll for one year on several counts, to be served concurrently, a total of $6,000 in fines, a permanent restriction on the right to practise child and adolescent psychiatry and a permanent restriction on the right to prescribe neuroleptic drugs to adults in high doses and in combination. The Professions Tribunal dismissed the appeal brought by the applicant, who applied for judicial review. The Quebec Superior Court dismissed the motion for judicial review. The Quebec Court of Appeal allowed the appeal in part but only as regards to penalty.

36953   Pierre Mailloux v. Mario Deschênes, in his capacity as assistant syndic of the Collège des médecins du Québec

(Que.)

Law of professions – Discipline

The disciplinary council of the Collège des médecins du Québec convicted the applicant of various offences in connection with four complaints laid against him by the syndic of his professional order between 1999 and 2008. The complaint in issue alleged, inter alia, that the applicant had prescribed excessive doses of neuroleptic drugs, improperly assessed a patient’s psychiatric condition and prescribed combinations of neuroleptic drugs (counts 1 to 5). It also alleged that he had made comments unbecoming of a physician on the radio, denigrated a member of another professional order and failed to adequately maintain a patient’s record, thereby hindering the syndic’s work (counts 6 to 12). The disciplinary council imposed on him a temporary striking off the roll for two years and a total of $33,000 in fines and made an order restricting his right to prescribe neuroleptic drugs in doses exceeding the manufacturers’ recommended doses and his right to prescribe several neuroleptic drugs at a time, in combination, [translation] “... as long as the Collège des médecins does not recommend prescribing megadoses of neuroleptic drugs ... to adults in the treatment of schizophrenia”. The Professions Tribunal dismissed the appeal brought by the applicant, who applied for judicial review. The Quebec Superior Court dismissed the motion for judicial review. The Quebec Court of Appeal allowed the appeal in part but only as regards to penalty.

36887  Suhaag Jewellers Ltd. v. Alarm Factory Inc. carrying on business as AFC Advance Integration

(Ont.)

Contracts – Commercial contracts – Limitation of liability clause

Suhaag Jewellers Ltd., a jewellery store, executed a contract with Alarm Factory Inc., for installation, servicing and monitoring of security systems. The contract contains a limitation of liability and indemnification clause. Suhaag Jewellers Ltd. filed a statement of claim alleging a theft of jewellery on or about August 28, 2012, and that the security and alarm monitoring service failed. It seeks damages from Alarm Factory Inc. in tort and for breach of contract. Alarm Factory Inc. moved for summary judgment, relying on the limitation and indemnification clause. The Ontario Superior Court of Justice granted the motion for summary judgment dismissing claim. The Court of Appeal for Ontario dismissed the appeal.

36889    Nick Mancuso, The Results Company Inc., David Rowland, Life Choice Ltd. (amalgamated from, rolled into, and continuing on business for, and from, E.D. Modern Design Ltd. and E.G.D. Modern Design Ltd.) and Dr. Eldon Dahl, and Agnesa Dahl v. Minister of National Health and Welfare, Attorney General of Canada, Minister of Public Safety and Emergency Preparedness, Royal Canadian Mounted Police, and Her Majesty the Queen in Right of Canada

(FC)

Charter of Rights – Alleged violations of ss. 2(a), 2(b), 7, 9 and 15 of the Charter

The applicants are individual and corporate consumers, distributors and producers of certain health products (the “Products”) in Canada. The Products are regulated as “drugs” as defined by s. 2 under the Food and Drugs Act, R.S.C., 1985, c. F-27 (the “Act”) and the Natural Health Products Regulations, SOR 2003-196 (the “Regulations”). The applicants brought an action challenging Parliament’s constitutional authority to regulate the production and sale of natural health products, including vitamins and dietary and nutritional food supplements. Alternatively, they challenged the statutory authority for the Regulations, pleadingCharter breaches and tortious conduct by government officials in administering and enforcing the regulatory scheme. Their statement of claim sought, inter alia, damages, declarations of invalidity and a stay of enforcement of provisions of theAct and Regulations.

The respondents brought a motion to strike the statement of claim in its entirety or paragraphs amounting to the bulk of the claim, and brought a motion to remove all defendants but Her Majesty the Queen in Right of Canada. The Federal Court struck the Claim “in accordance with these reasons”, granted leave to amend the Claim within 30 days, and struck the other defendants. The applicants appealed the decision, arguing that the Judge had erred in striking parts of the Claim and that those parts which had not been struck should be allowed to proceed. The respondents cross-appealed on the issue of whether the whole Claim had been struck. The Federal Court of Appeal interpreted the lower court decision as striking the entire statement of claim and dismissed the appeal.