APPLICATIONS FOR LEAVE TO APPEAL GRANTED

 

38376

1704604 Ontario Limited v. Pointes Protection Association, Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini (Ont.)

Judgments and orders — Anti-SLAPP legislation — Summary dismissal

The applicant, 1704604 Ontario Ltd ("170 Ontario") wanted to develop a subdivision in Sault Ste. Marie. The respondents, Pointes Protection Association ("PPA") is a not-for-profit corporation incorporated to provide a coordinated response on behalf of some area residents to 170 Ontario's development proposal. 170 Ontario's first application for approval to the Conservation Authority was denied, but a second application passed the necessary resolutions. PPA brought an application for judicial review of the decision and sought a declaration that the Conservation Authorities' resolutions were illegal and beyond the scope of its jurisdiction. While the judicial review application was pending, 170 Ontario sought the approval of the City Council as the proposed development required an amendment to the City's official plan. City Council turned down 170 Ontario's application. 170 Ontario appealed this decision to the Ontario Municipal Board ("OMB") and the PPA was granted standing in the proceedings.

While both the application for judicial review and the appeal were both pending, the parties settled the judicial review proceeding. In accordance with the terms of the agreement, the judicial review application was dismissed on consent without costs and the PPA and the individual members of the executive agreed they would take no further court proceedings seeking the same or similar relief that had been sought in their judicial review application. The PPA also promised that in any proceeding before the OMB, or in any other subsequent legal proceeding, PPA would not advance the position that the Conservation Authorities' resolutions were illegal, invalid, or contrary to the relevant environmental legislation.

170 Ontario's appeal to the OMB from the City Council's refusal to amend the official plan proceeded. In the course of the OMB hearing, PPA called its president who testified that, in his opinion, the proposed development would result in significant loss of coastal wetlands, thereby causing substantial environmental damage. The OMB dismissed 170 Ontario's appeal.

170 Ontario sued PPA for breach of contract asserting that PPA breached the terms of the agreement when the president gave evidence at the OMB concerning the proposed development's negative impact on the wetlands. PPA did not file a defence, but responded with a motion under s. 137.1 of the Courts of Justice Act for an order dismissing 170 Ontario's claim. The motion judge dismissed PPA's motion and ordered that the action proceed. The Court of Appeal allowed PPA's appeal. The order below was set aside and the action 170 Ontario's action was dismissed.

The Supreme Court granted leave to appeal and ordered that the appeal will be heard with Maia Bent, et al. v. Howard Platnick (38374).

38374

Maia Bent v. Howard Platnick — and between — Lerners LLP v. Howard Platnick (Ont.)

Judgments and orders — Anti-SLAPP legislation — Summary dismissal — Defamation

The respondent, Howard Platnick is a medical doctor who spends much of his professional time preparing and reviewing medical assessments done in the context of disputes between insurers and persons insured in motor vehicle accidents. He works mostly, but not exclusively for insurers. The applicant, Maia Bent is a lawyer and partner with the applicant law firm, Lerners LLP. She acts for individuals who have been injured in motor vehicle accidents and are seeking compensation from insurers. At the relevant time, Ms. Bent was also the president-elect of the Ontario Trial Lawyers Association ("OTLA"), an organization of lawyers, law clerks and law students who represent persons injured in motor vehicle accidents and who are involved in the automobile insurance dispute resolution process.

In November 2014, Ms. Bent was acting for a client who claimed to have suffered a catastrophic impairment as a result of a motor vehicle accident. Dr. Platnick was retained by the insurer to do an impairment calculation based on applicable criteria. The matter was eventually settled. A few days after the settlement, Ms. Bent posted an email on the OTLA members' automated email service. Only OTLA members could subscribe and members who subscribed were obligated to undertake to maintain the confidentiality of the information provided. Ms. Bent's email was however eventually leaked to the press. Ms. Bent's email was entitled "Sibley Alters Doctors' Reports" and made reference to two expert reports provided by Dr. Platnick in terms he claimed were defamatory. Dr. Platnick requested an apology and a retraction and when his requests went unanswered, he commenced a lawsuit.

Dr. Platnick sued Ms. Bent and Lerners for libel, claiming damages of more than $15 million. The applicants defend the claim, advancing several defences, including justification and qualified privilege. The applicants successfully moved for a dismissal of the action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. On appeal it was held that although the motion judge correctly determined that the expression in issue related to a matter of public interest, he erred in concluding that Dr. Platnick had failed to meet his onus under ss. 137.1(4)(a) and (b). The Court of Appeal found that on a proper application of those provisions, Dr. Platnick had met that onus. It was further held that s. 137.1 did not infringe s. 7 or s. 15 of theCanadian Charter of Rights and Freedoms . The appeal was allowed, the dismissal of the action was set aside and the matter remitted to the trial court.

The Supreme Court granted leave to appeal and ordered that the appeal will be heard with 1704604 Ontario Limited v. Pointes Protection Association, et al. (38376).

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

 

38175

Rita Blondin and Eriberto Di Paolo v. Postmedia Network Inc. (Que.)

Labour relations — Arbitration — Jurisdiction

In essence, the dispute between the parties concerns claims filed by the applicants, Ms. Blondin and Mr. Di Paolo, against their employer. Ms. Blondin and Mr. Di Paolo were members of a group of employees who were locked out for over six years. The labour dispute ended in 2002. The main issue relates to a disagreement submitted by the union on July 14, 2000 in which it claimed damages from the employer for the purpose of compensating the union and the typographers for any injury sustained as a result of an alleged violation of tripartite agreements dating from 1982 and 1987 at the time of filing of the employer's final best offer on January 21, 2000. An agreement was reached in 2012 to resolve in its entirety the dispute between the employer and the employees who were still represented by the union. Ms. Blondin and Mr. Di Paolo did not agree with this settlement. They argued that this disagreement meant that they could claim compensation for a period extending to the end of the labour dispute. The arbitrator made an award in which he rejected their request. The Superior Court dismissed the proceeding they brought. The Court of Appeal dismissed their appeal.

38309

Kay McVey Smith & Carlstrom LLP, Sherry B. Heikel and Sherry B. Heikel Professional Corporation v. 644036 Alberta Ltd. (Alta.)

Contracts — Non-performance — Torts — Negligence — Solicitor-client

Ms. Heikel, a lawyer, represented 644036 Alberta Ltd. in a purchase of lands for purposes of residential development but failed to obtain a transfer of title to part of the lands being purchased. 644036 Alberta Ltd. was unable to subdivide two intended lots. Ms. Heikel's negligence otherwise did not affect the residential development of the lands that were transferred. 644036 Alberta Ltd. commenced an action against Ms. Heikel, her law firm, the vendor and the vendor's solicitors, seeking declaratory relief and an order directing transfer of the lands in issue into its name. The trial judge awarded damages based on the purchase price of the lands at the time of the purchase. A majority of the Court of Appeal increased the damages awarded to reflect the increased value of the land at the time of subdivision. The dissenting judge would have upheld the trial judge's award.

38358

Mega Reporting Inc. v. Government of Yukon (Y.T.)

Contracts — Request for proposal — Government procurement — Good faith performance

In 2013, Yukon prepared a request for proposal for court reporting services. It indicated that an evaluation committee would examine each bidder's experience and performance on a technical basis. Bidders which met the technical criteria would be evaluated based on price. Yukon was not obliged to accept the lowest price. Clause 25 of the request for proposal provided that "by submitting a Proposal, [bidders] irrevocably waive[d] any claim, action, or proceeding against the Government of Yukon . . . for damages, expenses or costs . . . for any reason including: any actual or alleged unfairness on the part of the Government of Yukon at any stage of the Request for Proposal process; [or] if the Government of Yukon does not award or execute a contract". The request for proposal also explicitly provided that the bidding process was governed by the Contracting and Procurement Regulation, Y.O.I.C. 2013/19, and the Contracting and Procurement Directive. Section 2 of the Directive sets out principles for public procurement, including commitments to fairness, openness, transparency and accountability.

Two bids were submitted. The evaluation committee met once and concluded that Mega Reporting's bid did not meet the minimum technical requirements. The contract was awarded to the second bidder, whose bid was higher than Mega Reporting's bid. No contemporaneous record of the decision-making process was made. When Mega Reporting requested feedback on its bid, it was given a scoring method that had not been set out in the request for proposal, and the results, both based on the best recollection and handwritten notes of one of the evaluators. Mega Reporting appeared to have lost points for items not set out in the request for proposal.

Mega Reporting filed an action alleging that Yukon had breached its duty to fairly review the bid. Relying on Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) 2010 SCC 4, the trial judge found that it would be contrary to public policy to allow Yukon to rely on the waiver clause. She awarded damages for breach of fairness in evaluating the proposal. The Court of Appeal allowed Yukon's appeal.

38322

Pierre-François Blondeau v. Her Majesty the Queen (Que.)

Criminal law — Gang sexual assault — Rejection of joint submission on sentence

During a party featuring "electro" music, a 15‑year‑old girl was the victim of a gang sexual assault committed by the accused, Mr. Blondeau, and his two friends. The series of incidents took place at three different locations throughout the night of Friday, October 24 until the morning of Saturday, October 25, 2014. After Mr. Blondeau was found guilty, the defence and the Crown jointly proposed a sentence of 12 months' imprisonment. The trial judge rejected that sentence on the ground that it would bring the administration of justice into disrepute and would be contrary to the public interest. The judge was therefore of the view that the appropriate sentence would be 30 months' imprisonment. The majority of the Court of Appeal dismissed the appeal and upheld the sentence of imprisonment.

38428

Jonathan Lévesque-Gervais v. Julien Bolduc and Her Majesty the Queen (Que.)

Criminal law — Guilty plea

In 2014, the applicant, who was represented by counsel at the time, pleaded guilty to a charge of attempted murder. The court accepted his plea and imposed the sentence proposed in a joint submission, namely 10 years' imprisonment. Mr. Lévesque‑Gervais tried to appeal his conviction some three years later after he received a complete copy of the psychiatric assessment report prepared following his arrest in 2014. He also read an article stating that some lawyers accepted legal aid work and pressured their clients to plead guilty. He alleged that this was what had happened to him. On March 12, 2018, the Court of Appeal dismissed a first motion by the applicant for an extension of the time to appeal and for leave to appeal the 2014 judgment convicting him (2018 QCCA 393). The applicant filed new motions with the Court of Appeal a few months later. The Court of Appeal again refused to extend the time to appeal and dismissed his motions to present new evidence and to appeal the conviction resulting from his guilty plea.

38351

Groupe Solroc inc. v. Raymond Chabot inc., Dessau inc., Immeubles Yamiro inc. and Construction Morival Ltée (Que.)

Civil procedure — Forced intervention — Forced impleading

The applicant Solroc was sued by Raymond Chabot inc. in its capacity as monitor in an insolvency file. Solroc sought to force the respondents Dessau inc., Les Immeubles Yamiro inc. and Construction Morival Ltée to intervene in the action.

The Superior Court dismissed Solroc's declaration of forced intervention, finding that impleading was not necessary to fully resolve the dispute as it stood between the monitor and Solroc. It also dismissed the call in warranty on the ground that there was no connection between the principal application and the recourse in warranty that Solroc wanted to exercise. The Court of Appeal dismissed the application for leave to appeal from the Superior Court's decision.

38305

Cameo Knitting v. 9139-4882 Québec inc. — and — Officier de la publicité des droits de la circonscription foncière de Montréal (Que.)

Contracts — Non‑performance — Lease agreement with option to purchase — Applicant exercising right to purchase but respondent refusing to sell

The parties entered into a lease agreement whereby the applicant, 4207602 Canada inc. ("Cameo"), was granted an option to purchase the leased building from the respondent, 9139‑4882 Québec inc. ("Quebec inc.") if certain conditions were met. When Cameo exercised its right to purchase, Quebec inc. refused to sell on the basis that Cameo had been in default under the lease, and as a result, one of the conditions in the option to purchase agreement had not been respected. Cameo asked the Superior Court to compel Quebec inc. to pass title. The Superior Court dismissed the action. The Court of Appeal dismissed the appeal.

38413

B v. A — and — Company A, Company B, Company C and Company D (Que.)

Family law — Divorce — Accessory measures — Unjust Enrichment

Both parties were married for several years. After the pronouncement of the divorce, the former wife claimed a substantial portion of her former husband's assets as compensatory allowance for unjust enrichment through their marriage. A publication ban and a sealing order is in place in the file.

38436

Silvana Delli Quadri v. Antonio Antonacci and Anna Perrella (Que.)

Successions — Wills

The applicant, Ms. Delli Quadri, is the great niece of the late Adorino Totaro, who in 2008 amended his will to leave his duplex to the respondents, Mr. Antonacci and Ms. Perrella. He also gave them some money during his lifetime. He died in 2010. The applicant brought legal proceedings to contest the validity of the amended will.

The Superior Court allowed the motion in part. It did not annul the will, but it ordered the return of $10,000 paid by Mr. Totaro to the respondents shortly before his death. The Court of Appeal dismissed the appeal.

38226

Attorney General of Canada v. Jonathan Rochette — and — Her Majesty the Queen (Que.)

Criminal law — Evidence — Disclosure

The respondent, Mr. Rochette, applied to the Superior Court for the disclosure of evidence or a stay of proceedings. Charges had been laid against him, some of them under the Controlled Drugs and Substances Act . He sought to obtain information about analyst's certificates or reports concerning samples that had been analysed by the Drug Analysis Service's Longueuil laboratory.

The Superior Court granted the motion in part. In its view, certain of the requested information constituted fruits of the investigation despite not being in the Crown's possession. The Superior Court therefore ordered that the Crown attempt to obtain the information in question in order to disclose it to Mr. Rochette.

The Attorney General of Canada, who had intervened in the motion, applied for leave to appeal that decision to the Supreme Court of Canada.

38357

3092‑8949 Québec Inc., Marc Laroche, Marc Laroche Pièces d'Auto Inc. and M.L.P. Auto Inc. v. Agence du revenu du Québec (Que.)

Civil procedure — Abuse of process — Time — Discontinuance

Penal proceedings were brought and notices of assessment were issued against the applicants by the respondent, the Agence du revenu du Québec ("ARQ"), for failure to collect taxes on the sale of automobiles. In 2002, the applicants instituted an action in damages against the ARQ, alleging that tax legislation had been applied to them in an abusive manner. In 2017, the ARQ applied for the dismissal of the originating application, arguing that the applicants had to be presumed to have discontinued the proceedings and that the applicants' failure to advance their application constituted an abuse of procedure within the meaning of art. 51 of Quebec's Code of Civil Procedure.

The trial judge in the Quebec Superior Court allowed the ARQ's application for dismissal and dismissed the applicants' originating application as an abuse of the judicial process. The trial judge noted that, since being filed, the application had been completely inactive for three periods of time that totalled more than 12 years. He found that the passage of time gave rise to a presumption of prejudice to the ARQ and that the applicants had not shown that the conduct of their application was not unreasonable. The application was therefore abusive within the meaning of art. 51.

A Quebec Court of Appeal judge sitting alone dismissed the applicants' motion for leave to appeal from the trial judge's decision and agreed with the trial judge's reasons and analysis.

38290

Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation (Ont.)

Legislation — Interpretation — Taxation legislation — Administrative Law

The applicant Pong applied to the respondent Ontario Media Development Corporation ("OMDC") for a tax credit for its digital games, under the applicable provincial regulation. The OMDC refused the request, concluding that the products in question were developed primarily for promotional purposes, and thus were not eligible for the tax credit; their primary purpose was not to "educate, inform, or entertain the user", pursuant to the terms of the regulation.

A majority of the Divisional Court allowed Pong's application for judicial review. The majority judges found that the OMDC's decision to refuse the tax credit was unreasonable; the OMDC should not have considered Pong's original motivation in developing the digital games. In the alternative, if the OMDC's interpretation was reasonable but other competing reasonable interpretations existed, a residual presumption in favour of the taxpayer would have applied. The Court of Appeal unanimously allowed the OMDC's appeal and restored its original decision to refuse the tax credit. All three judges found that the OMDC's interpretation of the regulation was not unreasonable, and that the residual presumption was not applicable. However, each judge wrote separate reasons on the issue of the residual presumption and why it was inapplicable.