Applications for leave to appeal dismissed

SCC No. Case Name Province of Origin Keywords
38806 Ivars Mikelsteins v. Morrison Hershfield Limited ON Employment law — Unjust dismissal — Employment law
39722 Ariel Virgile Chokki Abilogoun c. Conseil d’administration de l’Ordre des comptables professionnels agréés du Québec QC Law of professions — Accountants — Assessments
39777 Jean-Guy Poulin c. Banque de Montréal QC Hypothecs — Default of payment — Forced surrender and sale under judicial authority
39877 Stuart Weinstein v. Toronto Standard Condominium Corporation No. 1466 ON Property — Condominiums — Arbitration
39717 Ahmad Aziz v. Canadian Human Rights Commission, et al. Federal Court Charter of Rights — Immigration — Judicial review
39766 ADAG Corporation Canada Ltd., et al. v. SaskEnergy Incorporated SK Contracts — Ratification — Estoppel by election
39770 Michael Lawen v. Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia, et al. NS Charter of Rights — Right to liberty — Testamentary freedom 
39800 John Ennis v. Attorney General of Canada Federal Court Administrative law — Judicial Review — Standard of Review
39802 Bradley Dorman, et al. v. Economical Mutual Insurance Company, et al. ON Administrative law — Boards and tribunals — Courts
39740 Procureur général du Québec, et al. c. Daniel Raunet, et al. QC Civil procedure — Declinatory exception — Jurisdiction of courts of original general jurisdiction
39762 Procureur général du Québec, et al. c. Philippe Léveillé, et al. QC Civil procedure — Declinatory exception — Jurisdiction of courts of original general jurisdiction
39776 Nelson Tayongtong v. Her Majesty the Queen ON Criminal law — Evidence — In‑court utterances
39839 Mark Rodney Klassen, et al. v. Her Majesty the Queen in Right of the Province of British Columbia (Minister of Public Safety and Solicitor General), et al. BC Civil procedure — Abuse of process — Issue estoppel
39696 Lucie Anne Marie Ritchie (formerly Brunet), et al. v. Castlepoint Greybrook Sterling Inc. ON Contracts — Breach of terms — Exclusion of liability clause
39742 Allan J. Harris v. Her Majesty the Queen Federal Court Civil procedure — Pleadings — Statement of Claim
39755 Danby Products Limited v. President of the Canada Border Services Agency Federal Court Legislation — Interpretation
39763 Shawn Beaver v. Law Society of Alberta AB Civil procedure — Contempt of court — Injunction
39813 J.D. c. G.P. QC Family law — Custody — Best interests — Parents’ residences in different cities

38806 Ivars Mikelsteins v. Morrison Hershfield Limited

(Ont.)

Employment law — Unjust dismissal — Employment law

Applicant awarded damages for unjust dismissal and entitled to what he would have received under shareholders’ agreement during notice period from the Ontario Superior Court of Justice. Respondent’s appeal allowed and applicant not entitled to compensation for benefits under shareholders’ agreement during notice period.

39722 Ariel Virgile Chokki Abilogoun v. Conseil d’administration de l’Ordre des Comptables professionnels agréés du Québec

(Que.)

Law of professions — Accountants — Assessments  

On April 25, 2019, the executive committee of the Ordre des comptables professionnels agréés du Québec (“Order”) made a decision concerning the status of the applicant, Ariel Virgile Chokki Abilogoun. The executive committee struck Mr. Abilogoun off the roll of the Order for failing to pay his annual assessment within the time specified and the late fees imposed on members who do not pay their annual assessment on time. Mr. Abilogoun applied to the Superior Court for judicial review of that decision, challenging the executive committee’s jurisdiction to make such an order.

Moore J. of the Quebec Superior Court dismissed Mr. Abilogoun’s application for judicial review of the Order’s decision. Healy J.A. of the Quebec Court of Appeal dismissed Mr. Abilogoun’s motion for leave to appeal the decision rendered by Moore J.

39777 Jean-Guy Poulin v. Bank of Montreal

(Que.)

Hypothecs — Default of payment — Forced surrender and sale under judicial authority

In February 2017, the respondent, Bank of Montreal, granted a hypothecary loan to the applicant, Mr. Poulin, for the purchase of a house. The hypothecary loan instrument provided that the only authorized method of making payments on the hypothec was by debiting a bank account. The applicant closed his bank account in September 2017 and made some partial payments in cash. He later deposited 24 post‑dated cheques as payment; only the first cheque was cashed by the respondent. The applicant defaulted on the hypothec as of January 2018. In August 2018, the respondent filed an originating application on account for forced surrender and authorization of sale under judicial authority.

The Court of Québec allowed the respondent’s application for forced surrender, authorized the sale of the applicant’s property under judicial authority and ordered the applicant to repay the respondent $71,418.54, with interest on $67,949.64. The Court of Appeal dismissed the applicant’s appeal.

39877 Stuart Weinstein v. Toronto Standard Condominium Corporation No. 1466

(Ont.)

Property — Condominiums — Arbitration

The applicant, Stuart Weinstein, owns and lives in a unit in a condominium building owned by the respondent, Toronto Standard Condominium Corporation No. 1466 — “TSCC 1466”. Further to a dispute over the replacement of defective pipes throughout the building, TSCC 1466 commenced arbitration proceedings to compel Mr. Weinstein to comply. The arbitrator issued an award ordering Mr. Weinstein to allow TSCC 1466 to replace the pipes in his unit and indemnify the condominium for costs incurred in connection with this work. The arbitrator also ordered Mr. Weinstein to pay $60,599.53 in legal costs to the condominium on a substantial indemnity basis. TSCC 1466 then registered a lien on Mr. Weinstein’s unit for the unpaid costs award. The condominium also sought a court order enforcing the arbitral award, while Mr. Weinstein brought an application to set it aside, or in the alternative, to remove the lien.

The Ontario Superior Court of Justice dismissed Mr. Weinstein’s applications, and granted TSCC 1466’s application to enforce the arbitral award. It also ordered Mr. Weinstein to pay $71,120.97 to TSCC 1466, representing all of its legal costs on a full indemnity basis. Mr. Weinstein attempted to appeal the Superior Court’s decisions before the Ontario Court of Appeal; TSCC 1466 brought a motion to quash the appeal for want of jurisdiction. On June 28, 2021, after quashing Mr. Weinstein’s attempted appeal but allowing him to proceed with a motion for leave to appeal, the Court of Appeal refused Mr. Weinstein leave to appeal the Superior Court decisions.

39717 Ahmad Aziz v. Canadian Human Rights Commission, Minister of Citizenship and Immigration

(F.C.)

Charter of Rights — Immigration — Judicial review

Mr. Aziz was arrested in Malta for allegedly providing false documents in order to obtain Maltese citizenship. Maltese authorities sought mutual assistance from Canadian authorities in verifying, inter alia, Mr. Aziz’s identity and place of birth. Mr. Aziz sent a request to the Canadian Human Rights Commission (“CHRC”) asking Canadian authorities not to respond to requests from the Maltese authorities on the ground that the requests were illegal. Mr. Aziz was advised by email that his request to file a complaint with the CHRC could not be accepted because he was not in Canada and had no right to lawfully return to Canada. Mr. Aziz applied for judicial review of that correspondence. He subsequently applied to convert the judicial review application into an action for several declarations. The Minister’s motion to strike his notice of application without leave to amend was granted and Mr. Aziz’s motion was dismissed. His notice of appeal was subsequently struck.

39766 ADAG Corporation Canada Ltd., Geschlossene Grunstückgesellshaft GGG 10 v. SaskEnergy Incorporated

(Sask.)

Contracts — Ratification — Estoppel by election

SaskEnergy Incorporated leased a building from the general partner of a limited partnership. It attempted to exercise one of five options to purchase the building that are included in the lease. In prior proceedings, the Court of Appeal declared the option unenforceable unless SaskEnergy can prove ratification of the option by the limited partners or estoppel by election. It remitted the matter to the Court of Queen’s Bench. The Court of Queen’s Bench found ratification and estoppel by election. It held the option is enforceable. The Court of Appeal dismissed an appeal.

39770 Michael Lawen v. Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia, Dr. Joseph Lawen in his Capacity as Executor of the Estate of Jack Lawen

(N.S.)

Charter of Rights — Right to liberty — Testamentary freedom

Jack Lawen died in 2016, leaving four adult children, three daughters and one son (the applicant, Michael Lawen). His will left $50,000 each to two of his daughters, nothing to his third daughter and the residual of the estate to the applicant. The three daughters commenced an action against the estate brought under s. 3(1) of the Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465 (“TFMA”), alleging their father’s will failed to make adequate provisions for them as dependants. In response, the applicant and the estate’s executor, Joseph Lawen brought an application challenging the constitutional validity of ss. 2(b) and 3(1) of TFMA, alleging those provisions contravened the freedom of conscience under s. 2(a) of the Canadian Charter of Rights and Freedoms and the liberty rights in s. 7. The three daughters were not named as parties in the Charter challenge.

The applicant and the executor were granted public interest standing in the Charter challenge application. The application judge held that s. 2(a) of the Charter was not violated by the impugned provisions, but that the definition of “dependant” was overly broad and offended the s. 7 liberty interests of testators generally. The application judge further found that the breach of s. 7 was not saved by s. 1. Pursuant to s. 52 of the Constitution Act, 1982, the court read down the meaning of “dependant” in the TFMA to exclude all non-dependant adult children. The respondent, Attorney General of Nova Scotia, appealed the decision and the applicant filed a notice of contention asserting the decision should be upheld. The Court of Appeal allowed the appeal and dismissed the applicant’s notice of contention.

39800 John Ennis v. Attorney General of Canada - and - Canadian Human Rights Commission

(F.C.)

Administrative law — Judicial Review — Standard of Review

The Federal Court set aside a screening decision of the Canadian Human Rights Commission in which it concluded that an inquiry by the Canadian Human Rights Tribunal into the discrimination complaint made by the applicant, Mr. John Ennis, was not warranted. The Commission made this decision after receiving an assessor’s report that recommended the Commission reach the opposite conclusion.

The Federal Court substituted its own analysis for that of the Commission and granted the applicant’s application for judicial review. It ordered that any reconsideration ought to be performed by different members of the Commission. The Federal Court of Appeal allowed the Attorney General of Canada’s appeal, set aside the judgment of the Federal Court, and dismissed Mr. Ennis’ application for judicial review.

39802 Bradley Dorman v. Economical Mutual Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Jeanette Mieyette v. Allstate Insurance Company of Canada, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Shelli-Lynn Black v. Belair Insurance Company Inc. carrying on business as Belair Direct, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between - 

Catherine Brooks v. Intact Financial Corporation c.o.b. Intact Insurance, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

William Elliott v. Aviva Insurance Company of Canada, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Jill Nicholson v. Unifund Assurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Fernanda Sampaio v. Certas Home and Automobile Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

David Macleod v. Commonwealth Mutual Insurance Group, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Madeleine Bonhomme v. Co-operators General Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

John Ross Robertson v. Echelon General Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Mark Cicciarelli v. Wawanesa Mutual Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Kristopher Baron v. St. Paul Fire and Marine Insurance Company, Travelers Insurance Company of Canada, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Gary Gibbons v. TD Insurance, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

Brian Nagle v. Gore Mutual Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

- and between -

David Sura v. CUMIS General Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills

(Ont.)

Administrative law — Boards and tribunals — Courts

The applicant claimants filed proposed class actions against 15 auto insurers and the Financial Services Commission of Ontario (FSCO), the government entity that regulates the insurers, along with its current and former Superintendents. They alleged that the insurers had improperly reduced their statutory accident benefits (SABs) by deducting Harmonized Sales Tax (HST), and that the FSCO wrongfully failed to investigate the practices of the insurers after receiving complaints, and also failed to enforce its own guidelines on HST and SABs.

Two of the respondent insurers, Belair and Intact, entered into tentative settlements with the applicants who claimed against them. The settlements were conditional on the proceedings being certified as class proceedings and on court approval of the settlements.

The FSCO, and most of the respondent insurers, brought parallel motions under rr. 21.01(1)(a) and 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking to stay or dismiss the proposed class actions on the basis that the Superior Court of Justice lacks jurisdiction. The applicants, who had entered into tentative settlements with Belair and Intact, sought a determination that the court has jurisdiction to certify the proceedings as class proceedings and to approve the settlements.

The motion judge concluded that the Licence Appeal Tribunal has exclusive jurisdiction over the applicants’ dispute against the insurers. Accordingly, he granted the motions to dismiss the proposed class actions and declined to approve the settlements with Belair and Intact. The applicants appealed from the dismissal of their claims and the refusal to approve the Belair and Intact settlements. The applicants’ appeals were dismissed.

39740 Attorney General of Quebec v. Daniel Raunet and Colombe Gagnon

- and -

Fédération des médecins spécialistes du Québec, Fédération des médecins omnipraticiens du Québec, Association des optométristes du Québec and Régie de l’assurance maladie du Québec

- and between -

Fédération des médecins spécialistes du Québec, Fédération des médecins omnipraticiens du Québec and Association des optométristes du Québec v. Daniel Raunet and Colombe Gagnon

- and -

Attorney General of Quebec and Régie de l’assurance maladie du Québec

(Que.)

Civil procedure — Declinatory exception — Jurisdiction of courts of original general jurisdiction

On June 2, 2016, the respondents, Daniel Raunet and Colombe Gagnon, filed a motion with the Superior Court for authorization to institute a class action against: the Attorney General of Quebec (AGQ), an applicant and intervener in these applications; the Fédération des médecins spécialistes du Québec, the Fédération des médecins omnipraticiens du Québec and the Association des optométristes du Québec, applicants and interveners in these applications; and the Régie de l’assurance maladie du Québec (RAMQ), an intervener here. The respondents, whose class action is at the authorization stage, would like to represent a class consisting of [translation] “all persons who paid money for fees related to an insured service provided by a physician or optometrist, remunerated by the [RAMQ], since June 2, 2013, or who postponed or ended treatment that was planned after being informed of the fees they would be charged”. In response to the filing of the motion for authorization to institute a class action, the AGQ, the RAMQ and the three associations of health professionals concerned filed motions for declinatory exception based on ss. 14 and 22.0.1 of the Health Insurance Act, CQLR, c. A‑29, arguing that the class action was within the jurisdiction of the RAMQ and the Administrative Tribunal of Québec under s. 14 of the Act respecting administrative justice, CQLR, c. J‑3.

The Superior Court declined jurisdiction only in relation to the RAMQ for the claim for damages equivalent to the unlawfully charged fees. It dismissed the RAMQ’s application for declinatory exception with regard to the other conclusions sought. It also dismissed the applications for declinatory exception of the other applicants and interveners here, and the Court of Appeal dismissed their appeals.

39762 Attorney General of Quebec v. Philippe Léveillé

- and -

Régie de l’assurance maladie du Québec, et al.

- and between -

Groupe Vision New Look inc. v. Philippe Léveillé

- and -

Attorney General of Quebec et al.

(Que.)

Civil procedure — Declinatory exception — Jurisdiction of courts of original general jurisdiction

The respondent, Philippe Léveillé, was appointed as representative plaintiff for the purpose of instituting a class action on behalf of a class described as [translation] “all persons who paid money on being billed more than the cost price for medication or anesthetic fees incidental to an insured service provided by a physician, optometrist or private clinic remunerated by the Régie de l’assurance maladie du Québec (RAMQ)” for a period of six years, from May 2011 to January 2017 (judgment authorizing the class action, 2017 QCCS 3762, affirmed by the Quebec Court of Appeal, 2018 QCCA 819). Mr. Léveillé is seeking reimbursement, from the medical professions that are the subject of his class action, for the billed incidental fees that exceed the actual cost of the medication and anesthetics provided in the course of services insured by the RAMQ through the Health Insurance Act, CQLR, c. A‑29 (HIA).

After the class action was authorized, the Attorney General of Quebec (AGQ), the applicant in the first leave application and an intervener in the second, and the RAMQ, an intervener, filed applications for declinatory exception, relying on s. 14 of the Act respecting administrative justice, CQLR, c. J‑3 (AAJ), and ss. 14 and 22.0.1 of the HIA to challenge the Superior Court’s jurisdiction. They argued that the class action was within the exclusive jurisdiction of the RAMQ and the Administrative Tribunal of Québec (ATQ) instead. Groupe Vision New Look inc., the applicant in the second leave application and an intervener in the first, filed, among other things, an application for declinatory exception. The Superior Court dismissed all the applications for declinatory exception. The Court of Appeal dismissed the appeals brought by the AGQ and Groupe Vision New Look and allowed the RAMQ’s appeal.

39776 Nelson Tayongtong v. Her Majesty the Queen

(Ont.)

Criminal law — Evidence — In‑court utterances

Mr. Tayongtong was charged with first degree murder. While in court awaiting case management proceedings, he interrupted proceedings in another case and uttered several inculpatory statements including admissions of guilt. An order was issued to assess his fitness to stand trial. Once Mr. Tayongtong was found fit, the trial proceeded, and Mr. Tayongtong pled not guilty. The trial judge ruled the Crown could enter the statements of guilt into evidence. A jury convicted Mr. Tayongtong of second degree murder. The Court of Appeal dismissed an appeal.

39839 Mark Rodney Klassen, Olive Cynthia Klassen v. Her Majesty the Queen in Right of the Province of British Columbia (Minister of Public Safety and Solicitor General), Lane Tobin

(B.C.)

Civil procedure — Abuse of process — Issue estoppel

The applicants, Mark and Olive Klassen, were acquitted of assaulting a police officer — the respondent Constable Lane Tobin — in criminal proceedings. The applicants then sued the respondents, the police officer and the province of British Columbia, seeking damages for torts occurring during their unlawful arrest. In their response to the civil claim, the respondents asserted various facts that were rejected by the criminal proceedings trial judge, including that Constable Tobin was justified in arresting the applicants.

The applicants therefore applied to have certain paragraphs of the response struck from the record, on the basis of the doctrine of issue estoppel and abuse of process. They submitted that the lawfulness of the arrest had already been determined and ought not to be re‑litigated. The chambers judge dismissed the applicants’ application to strike. The Court of Appeal unanimously dismissed the applicants’ appeal from that decision. 

39696 Lucie Anne Marie Ritchie (formerly Brunet), Rahul Joshi and Erin Leslie v. Castlepoint Greybrook Sterling Inc.

(Ont.)

Contracts — Breach of terms — Exclusion of liability clause

The respondent, Castlepoint Greybrook Sterling Inc., is a land developer who pre‑sold units in a residential condominium building it planned to develop. Between 2015 and 2016, various purchasers, including the applicants, entered into pre��construction agreements of purchase and sale with the developer.

The developer did not begin construction. Instead, in late 2017, it terminated the agreements and returned the purchasers’ deposits with interest. The applicants sued the developer for damages for breach of contract. The developer brought a motion for summary judgment to dismiss the action, relying on an exculpatory clause in the agreement.

The Superior Court concluded that the exculpatory clause applied even where the developer breached the clauses incorporated into the agreement pursuant to regulation (the “Tarion Addendum clauses”). It further concluded that there was no public policy reason that would override the exculpatory clause. As the developer had a complete defence to the claim for damages, the Superior Court dismissed the applicants’ claim. The Court of Appeal dismissed the applicants’ appeal. It agreed that the Tarion Addendum clauses, which imposed certain good faith obligations on the developer, did not alter the plain meaning of the exculpatory clause. It added that the exculpatory clause was not inconsistent with the letter of the Tarion Addendum clauses, or with the policy underlying those provisions.

39742 Allan J. Harris v. Her Majesty the Queen

(F.C.)

Civil procedure — Pleadings — Statement of Claim

The applicant, Mr. Harris, filed an amended statement of claim in Federal Court challenging the constitutionality of certain provisions in the Cannabis Regulations, SOR/2018‑144, relating to medical cannabis. He argued that those provisions violated the rights, under ss. 7 and 15 of the Canadian Charter of rights and Freedoms, of individuals with large prescriptions for medical cannabis. He also sought a personal exemption from the provisions, pending a final decision on their constitutionality. The respondent Crown moved to strike the applicant’s claim without leave to amend, and opposed his motion for interlocutory relief.

The Federal Court dismissed the Crown’s motion, allowed the applicant’s claim to proceed, and granted him the interim relief requested. A unanimous panel of the Federal Court of Appeal allowed the Crown’s appeal, set aside the decision of the Federal Court and struck the applicant’s claim without leave to amend, as it was of the view that the facts pleaded in the claim were insufficient to establish a reasonable cause of action.

39755 Danby Products Limited v. President of the Canada Border Services Agency

(F.C.)

Legislation — Interpretation

An importer disputed the Canada Border Services Agency’s classification of wine coolers under the Customs Tariff. The importer appealed to the Canadian International Trade Tribunal; Danby Products Limited intervened. The Canadian International Trade Tribunal affirmed the classifications of the goods as “refrigerators, household type and compression‑type” and “other refrigerators, household type”. The Federal Court of Appeal dismissed an appeal by Danby.

39763 Shawn Beaver v. Law Society of Alberta

(Alta.)

Civil procedure — Contempt of court — Injunction

The Law Society of Alberta suspended Mr. Beaver’s membership and Mr. Beaver signed an undertaking not to conduct legal work. The Law Society considered him to be in breach of the undertaking, and it applied for an injunction. The injunction was granted. The Court of Appeal dismissed an appeal.

Later, after Mr. Beaver was disbarred, the Law Society again considered Mr. Beaver to be practicing law. It applied to have him found in contempt of the earlier injunction. A chambers judge found Mr. Beaver to be in civil contempt. The Court of Appeal dismissed an appeal.

39813 J.D. v. G.P.

(Que.) (Civil) (By Leave)

Family law — Custody — Best interests — Parents’ residences in different cities

A few years after they stopped living together, the parties, parents of three children aged 11, 7 and 5, went to court over custody of the children. The applicant was then living in a city different from that of the family residence, where the children and the respondent remained.

The Superior Court awarded the respondent custody of the children and granted the applicant certain access rights, finding that it was in the children’s best interests not to have to go through a major disruption by changing schools. The court was also of the view that the report by counsel for the 11‑year‑old child was key and that, as a result, it could not ignore the wishes expressed by that child, which were in line with continuity in terms of custody for the father during the school period. The Court of Appeal did not intervene on the issue of custody of the children, as it was of the opinion that no palpable and overriding error had been shown.