Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 – Immigration — Inadmissibility and removal — Permanent residents
On appeal from a judgment of the Federal Court of Appeal (2015 FCA 237) setting aside a decision of O’Reilly J. (2014 FC 1040).
T, a permanent resident in Canada, was charged with a federal offence for which, at the time of the commission of the offence, the maximum penalty was seven years of imprisonment. After he was charged, but prior to his conviction, the maximum penalty for that offence was increased to 14 years of imprisonment. T was convicted of the charge against him, and received a 12‑month conditional sentence of imprisonment to be served in the community.
Following T’s conviction and sentencing, immigration officers prepared a report stating that T was inadmissible to Canada on grounds of serious criminality, under s. 36(1)(a) of the Immigration and Refugee Protection Act (“IRPA”). This provision provides that a permanent resident is inadmissible to Canada for having been convicted in Canada of a federal offence punishable by a maximum term of imprisonment of at least 10 years, or of a federal offence for which a term of imprisonment of more than six months has been imposed. The report was then submitted to a delegate of the Minister of Public Safety and Emergency Preparedness, who decided to adopt it and refer the matter to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing. T applied for judicial review of the delegate’s decision. The reviewing judge allowed the application, finding that the offence of which T was convicted did not come within s. 36(1)(a) of the IRPA and that the delegate’s decision to the contrary was unreasonable. The Court of Appeal allowed the Minister’s appeal.
Held (9-0):The appeal should be allowed, the decision of the Minister’s delegate quashed and the matter remitted to a different delegate.
The modern principle of statutory interpretation is that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Applying this approach, the interpretation of s. 36(1)(a) of the IRPA by the Minister’s delegate cannot stand under either standard of review.
Conditional sentences are not captured in the meaning of the phrase “term of imprisonment” in s. 36(1)(a) of the IRPA. The purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish serious criminality depends on its length — it must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. Conditional sentences, even with stringent conditions, will usually be more lenient than jail terms of equivalent duration, and generally indicate less serious criminality than jail terms. Since a conditional sentence is a meaningful alternative to incarceration for less serious and non‑dangerous offenders, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.
Furthermore, the meaning of “term of imprisonment” varies according to the statutory context. Its meaning in ss. 36(1)(a) and 64 of the IRPA has been interpreted by this Court to mean “prison”. This interpretation avoids absurd results. Since more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes, it would be an absurd outcome if less serious and non‑dangerous offenders who received conditional sentences were deported, while more serious offenders receiving jail terms shorter than those conditional sentences were permitted to remain in Canada. Public safety, as an objective of the IRPA, is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.
The phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1)(a) of the IRPA refers to the maximum term of imprisonment available at the time of the commission of the offence, and is to be understood as referring to the circumstances of the actual offender or of others in similar circumstances. This interpretation aligns with the purpose of the IRPA, as outlined in s. 3. The IRPA aims to permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents. The obligation of permanent residents to behave lawfully includes not engaging in “serious criminality” as defined in s. 36(1); however, that obligation must be communicated to them in advance. While Parliament is entitled to change its views on the seriousness of a crime, it is not entitled to alter the mutual obligations between permanent residents and Canadian society without clearly and unambiguously doing so. Section 36(1)(a) must be interpreted in a way that respects these mutual obligations. In the absence of an indication that Parliament has considered the retrospectivity of this provision and the potential for it to have unfair effects, the presumption against retrospectivity applies. Accordingly, the relevant date for assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision.
Reasons for judgment: Côté J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ. concurring)
Neutral Citation: 2017 SCC 50
Docket Number: 36784
APPEAL DISMISSED OCT. 13
Montréal (City) v. Dorval, 2017 SCC 48 – Prescription — Civil liability — Municipalities
On appeal from a judgment of the Quebec Court of Appeal (2015 QCCA 1607) setting aside a decision of Nantel J. (2014 QCCS 4590).
In October 2010, D was murdered by her former spouse. In October 2013, members of D’s immediate family sued the City of Montréal in its capacity as principal of the police officers whose negligence had allegedly contributed to D’s death in that they had failed to take appropriate action to adequately ensure her safety. The family members sought damages personally for moral and material injuries (solatium doloris, funeral expenses and loss of emotional support). The City countered their action with a motion to dismiss, arguing that the action was prescribed under s. 586 of the Cities and Towns Act, which provides that every action against a municipality is prescribed by six months from the day on which the cause of action accrued.
The trial judge concluded that the family members’ action was prescribed under s. 586 of the Cities and Towns Act because they had not themselves suffered any interference with their physical integrity, that is, any “bodily injury”. They therefore could not avail themselves of art. 2930 of the Civil Code of Québec (“C.C.Q.”), under which the three‑year general law prescriptive period would apply. The Court of Appeal held that the action was not prescribed. In the words of art. 2930 C.C.Q., the family members’ action was indeed “based on the obligation to make reparation for bodily injury caused to another”.
Held (7-2): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Wagner and Gascon JJ.: The action is not prescribed. For the purposes of the application and interpretation of art. 2930 C.C.Q., any civil liability action instituted to claim reparation for the direct and immediate consequences of interference with a person’s physical integrity must be based on the obligation to make reparation for bodily injury caused to another. The words “where an action is based on the obligation to make reparation for bodily injury caused to another” in art. 2930 C.C.Q. require that the court characterize the basis for the action in order to determine whether that article applies to a particular case. The basis for the action corresponds here to the wrongful act that gave rise to interference with the victim’s physical integrity. This interpretation has neither as its purpose nor as its effect to turn a moral or material injury into a bodily injury. When the term “bodily injury” is used in the Code, it necessarily refers to interference with a person’s physical integrity. However, wrongful interference, whether bodily, material or moral in nature, remains the basis for the civil liability action. For the purposes of art. 2930, it is the nature of the initial interference rather than the head of damages being claimed that results in the injury being characterized as “bodily injury” and that constitutes the source or basis of the action. Any victim of wrongful interference with his or her physical integrity and any other victim who also suffers immediate and direct consequences of that interference will be able to claim damages for their pecuniary or non‑pecuniary losses under heads alleged in an action based on that same wrongful interference.
This interpretation of the words of art. 2930 C.C.Q. is consistent with the legislature’s intention. Article 2930 is one of a set of legislative provisions that were enacted to better protect the integrity of the person and to ensure full compensation for those whose personal integrity has been interfered with. It is the right to physical integrity that corresponds to the interest the legislature is seeking to protect, which necessarily encompasses the right to reparation for all immediate and direct consequences that flow from such interference with physical integrity. The result of this is that all victims who suffer direct and immediate consequences of the same wrongful interference must have the same period of extinctive prescription to institute their actions. This large and liberal interpretation of art. 2930 is thus a solution that is both consistent and fair, one that can facilitate access to justice for victims.
In this case, the family members’ civil liability action is based on D’s death, which allegedly resulted from the wrongful act of the City of Montréal, namely the inaction of its police officers. It is thus claimed that the City has an obligation to make reparation for the interference with physical integrity it allegedly caused to D, as well as for all pecuniary and non‑pecuniary consequences suffered by the family members that are a direct and immediate result of that interference. The three‑year prescriptive period applies to the family members’ action, which was therefore not prescribed at the time it was filed.
Per Côté and Brown JJ. (dissenting): The action is prescribed. The members of D’s family may not avail themselves of the three‑year prescriptive period under art. 2930 C.C.Q., given that they have not themselves suffered bodily injury as a result of D’s death. This conclusion is based on decisions in which the Court clearly held that although the concept of bodily injury is flexible, an action based on bodily injury must arise out of interference with the physical integrity of the person claiming compensation.
Nor is it possible for the family members to avail themselves of the exception provided for in art. 2930 C.C.Q. on the basis that the source of their action is D’s bodily injury. The injury must be characterized in terms of its consequences, not its source. The contrary position has the effect of conflating two distinct elements that are necessary for any right of action to exist in civil liability, namely fault and injury. It also leads to an artificial characterization of bodily injury that would introduce confusion into Quebec civil law. An injury that is not bodily injury cannot be transformed into bodily injury in this way simply on the basis that it has been occasioned by an initial bodily injury. In this case, the action is based on the obligation to make reparation for moral and material injuries the family members allege they have suffered, and not on the obligation to make reparation for bodily injury suffered by a third party. The words of art. 2930 C.C.Q. are clear: the article applies only “where an action is based on the obligation to make reparation for bodily injury”. The obligation to make reparation concerns bodily injury suffered by the plaintiff, and not any other types of injury that third parties may have suffered as a result of the same fault. Although the legislature did intend to protect the right to physical integrity, nothing in the words of art. 2930 supports the suggestion that it encompasses the right to reparation for all consequences that flow from such interference with physical integrity.
If the legislature had intended to protect victims of moral or material injury in the same way as victims of bodily injury, it would have expressly extended the scope of art. 2930 C.C.Q. as it did in other provisions of the Code. The clear language of art. 2930 cannot be disregarded. Consistency of provisions respecting prescriptive periods is the prerogative of the legislature and should not be subject to general policy preferences of the courts.
Reasons for judgment: Wagner J. (McLachlin C.J. and Abella, Moldaver and Gascon JJ. concurring)
Joint Dissenting Reasons: Côté and Brown JJ.
Neutral Citation: 2017 SCC 48
Docket Number: 36752
APPLICATION FOR LEAVE TO APPEAL GRANTED
International Brotherhood of Electrical Workers (IBEW) Local 773, Karl Lovett, Ken Gelinas, Jeff McPherson, Mark Stobbs, Sean Bristow, Robert Duby, Norm Ball, and Fred Bloomfield v. Pamela Lawrence(Ont.)
Civil procedure — Parties — Capacity to be sued — Trade union
Having been terminated from her employment with the International Brotherhood of Electrical Workers, Local 773, Ms. Lawrence sought damages for wrongful dismissal, naming Local 773 as a defendant. Although Local 773 pleaded that, as a trade union, it could not be named as a party based on Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3(2), Ms. Lawrence obtained a consent order adding several directors of Local 773 as defendants and amended the statement of claim to plead that they were jointly and severally liable for her claim rather than obtaining a representation order under Rule 12.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The action proceeded normally. Once the limitation period expired, Local 773 and the individual defendants moved under Rule 21 for an order dismissing the action on the ground that Local 773 was not a suable entity and the individual defendants were not personally answerable to the claim.
The motions judge refused to strike the claim as disclosing no reasonable cause of action because the motion had not been brought in a timely manner. Leave to appeal that decision was dismissed. Ms. Lawrence then moved for and was granted a representation order under Rule 12.07 and leave to amend her statement of claim to add the individual applicants as representatives of all members of Local 773. A majority of the Court of Appeal dismissed both Ms. Lawrence’s motion to quash the appeal for want of jurisdiction and the applicants’ appeal.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Doran Alfred Flock v. William McKen, Litigation Representative of the Estate of Arlene Joy Flock (Alta.)
Civil procedure – Time
Arlene Flock and Doran Flock separated in 1996. Doran Flock began litigation to divide matrimonial property. Arlene Flock died and William McKen continued as the Litigation Representative of her Estate. On December 19, 2014, William McKen on behalf of the Estate applied pursuant to Rule 4.33 of the Alberta Rules of Court, AR 124/2101, for an order dismissing Doran Flock’s action. Rule 4.33 states that if three or more years has passed without a significant advance in an action, the court on application must dismiss the action, subject to exceptions set out in the rule. Rule 4.33 was amended on June 16, 2016 by Alta. Reg. 85/2016. The Court of Queen’s Bench of Alberta dismissed the motion to dismiss the action. The Court of Appeal allowed the appeal.
Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. (Ont.)
Contracts – Commercial lease – Landlord and Tenant
This case concerns the interpretation of insurance and cross-indemnity covenants contained in a commercial lease. After a fire destroyed the leased premises, causing significant damage to the respondent, Landlord’s building and the applicant, Tenant’s property and business, the Tenant brought a claim against the Landlord to recover its losses.
The Tenant successfully obtained summary judgment against the Landlord. The motion judge found the Landlord assumed the responsibility of indemnifying the Tenant and was therefore liable for the losses claimed by the Tenant. The Court of Appeal allowed the appeal and set aside the summary judgment and dismissed the Tenant’s action against the Landlord.
The Tenant brought an application for leave to appeal to this Court. This Court remanded the appeal back to the Court of Appeal for disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37,  2 S.C.R. 23.
The Court of Appeal concluded the remand should be dismissed and the original Court of Appeal decision of April 4, 2016 should stand.
The applicant applies for leave to appeal for a second time.
Celia Sankar v. Bell Mobility Inc. (Ont.)
Contracts – Breach of contract – Prepaid wireless phone card accounts
This case is about prepaid wireless phone card accounts. It concerns the fate of the balance remaining in a Bell Mobility Inc. subscriber’s account when she fails to “top up” the account before the end of its “active period”. Bell’s prepaid “top-ups” allow customers to add credit to their accounts and extend their active periods that give them access to Bell’s wireless network. Bell’s practice, during the period at issue, was to claim unused funds the day after the end of the active period.
The applicant, Ms. Sankar’s certified class action alleged that Bell collected those funds improperly. She claimed the contract provided that Bell had to wait until the second day after the end of the active period, not the first day.
The motion judge ruled that Bell did not breach its contract and granted summary judgment answering the common issues in Bell’s favour and dismissing the class action. The Court of Appeal dismissed the appeal.
The applicant brought an application for leave to appeal to this Court. This Court remanded the appeal back to the Court of Appeal for disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37,  2 S.C.R. 23. The Court of Appeal examined the case again on the basis of the remand order and affirmed its initial decision.
The applicant seeks leave to appeal for a second time.
R. Maxine Collins v. Attorney General of Ontario, Attorney General of Canada(Ont.)
Civil Procedure – Jurisdiction – Abuse of process – Vexatious litigants
The Applicant, Ms. Collins filed a Notice of Appeal when the Respondent, Attorney General of Canada was granted a motion to strike the Applicant’s statement of claim. The Applicant then unsuccessfully attempted to have the Registrar of the Court of Appeal issue a Notice of Application addressing the Applicant’s alleged right to accurate and complete transcripts. The Applicant challenged this denial by bringing an application to the Court of Appeal seeking an order that before she is required to pay for transcripts, she be assured they are accurate and complete. The motion was dismissed by the chambers judge based on lack of jurisdiction to issue an originating process such as a Notice of Application. The chambers judge however directed the local registrar to provide the Applicant with a compact disc with the live recording of the relevant proceeding when she paid for and received the transcript. The Applicant was then granted an extension of time to perfect her appeal. The Applicant then brought an application before the Superior Court for a declaration that she be guaranteed accurate and complete transcripts of the court proceedings. Her application was found to be premature as the Court of Appeal had already provided directions on how to proceed. The Applicant then sought to appeal this order. Following this, the Respondents sought an order under rule 2.1 of the Rules of Civil Procedure dismissing the Applicant’s appeal. The order was granted.