APPLICATION FOR LEAVE TO APPEAL GRANTED

SCC No. Case Name Province of Origin Keywords
38546 C.P. v. Her Majesty the Queen ON Charter of rights  — Right to liberty

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin  Keywords
38817 Lemuel Mussie Paulos v. Her Majesty the Queen AB Criminal law — Appeals
38845 OZ Merchandising Inc. v. Eastern Ontario District Soccer Association, Ontario Soccer Association and Canadian Soccer Association ON Civil procedure — Pleadings
38902 Alberta Union of Provincial Employees, Guy Smith, Susan Slade and Karen Weiers v. Her Majesty the Queen in Right of Alberta AB Charter of Rights  — Constitutional law
38914 MacDonald Communities Limited v. Alberta Utilities Commission  AB Administrative law — Boards and tribunals
38975 Dexter Boyce v. Her Majesty the Queen  ON Charter of Rights  — Constitutional law
38947 Hafeez Fazl also known as Fazl Hafeez v. 2256157 Ontario Ltd.  ON Civil Procedure –– Judgments and orders
38831 Daniel Gaudreau, et al. c. Producteurs et productrices acérioles du Québec, et al. QC Civil procedure — Appeals
38893 Bernadine Marie Vavrek v. Darryl Kevin Vavrek  AB Family law — Support — Child support
38910 Heiko Peter Wiechern v. Maili Lorraine Wiechern MN Family law — Support — Child support
38978 Dahir Mohamed v. Farhiyo Tahlil Farah ON Family law — Custody and access
38937 Harold Russell, Brian Russell v. Northumberland Co-Operative Limited  NB Commercial law — Corporations
38906 L.A.N. v. Child and Family Services of Western Manitoba and Attorney General of Manitoba MN Charter of Rights  — Right to fair hearing
 

APPLICATION FOR LEAVE TO APPEAL GRANTED

38546

C.P. v. Her Majesty the Queen (Ont.)

Charter of rights  — Right to liberty — Right to equality

The applicant, C.P., a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1  (“YCJA ”) was convicted of one count of sexual assault. It is alleged that he had non‑consensual sexual intercourse with his 14‑year‑old friend, the complainant, while at a beach to celebrate a friend’s birthday. Central to a finding of guilt was whether the complainant had the capacity to consent to the sexual activity, and that depended largely on the timing of the sexual activity. The Crown alleged that the complainant could not have consented to the sexual activity because it had occurred late at night when she was severely intoxicated.

The trial judge at the Ontario Court of Justice was satisfied beyond a reasonable doubt that the complainant was not capable of consenting and that the applicant could not rely on an honest but mistaken belief that she had consented.

A majority of the Court of Appeal for Ontario dismissed the appeal. Nordheimer J.A., dissenting, would have allowed the appeal, set aside the conviction and entered an acquittal. In his view, the trial judge’s conclusion that the complainant was not capable of consenting was demonstrably incompatible with the whole of the evidence, especially the uncontradicted evidence.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38817

Lemuel Mussie Paulos v. Her Majesty the Queen (Alta.)

Criminal law — Appeals — Powers of Court of Appeal — Unreasonable verdict  

Mr. Paulos was a taxi cab driver in Calgary. A complainant testified that on the evening of March 30, 2013, at the end of a ride in his cab to her residence, he parked in the visitor parking area, entered the back seat of the cab and sexually assaulted her. Mr. Paulos testified that the complainant asked him to walk her up the stairs of her building, pulled him inside her residence, and sexually assaulted him. The trial judge found the complainant credible and accepted her testimony. She found Mr. Paulos not credible and disbelieved much of his testimony. Mr. Paulos was convicted of sexual assault. The Court of Appeal found that the trial judge committed errors in her reasoning but it dismissed an appeal from the conviction.

38845

OZ Merchandising Inc. v. Eastern Ontario District Soccer Association, Ontario Soccer Association and Canadian Soccer Association (Ont.)

Civil procedure — Pleadings 

The applicant, OZ Merchandising Inc. (OZ) operated a semi‑professional soccer known as the Ottawa Wizards, for three seasons in 2001 to 2003 in the now defunct Canadian Professional Soccer League (CPSL). The respondents involved govern the sport of soccer in Eastern Ontario.  The CPSL would have been subject to the respondent, Canadian Soccer Association’s (CSA) governance when the league was in existence. The statement of claim (originally issued in 2004 and amended in 2008, 2012 and 2016) alleged CSA breached a contract with OZ when it permitted two of the team’s leading players to leave the team and transfer back to their native Malawi. Damages were claimed. OZ sought two further amendments to the amended statement of claim. The motion judge dismissed the motion to amend the amended statement of claim (but allowed minor grammatical edits). The Divisional Court quashed the appeal to its court for want of jurisdiction. The Court of Appeal denied leave to appeal the Divisional Court order.

38902

Alberta Union of Provincial Employees, Guy Smith, Susan Slade and Karen Weiers v. Her Majesty the Queen in Right of Alberta (Alta.)

Charter of Rights  — Constitutional law — Freedom of association

The Province of Alberta and the Alberta Union of Provincial Employees (AUPE) entered into a number of three year collective agreements. Those agreements implemented a two year wage freeze, with an option in the third year to reopen negotiations about wages. The agreements provided that if the ‘wage‑reopener’ negotiations were not successful, the issue would be sent to binding arbitration, with any wage adjustment to be retroactive to April 1, 2019. Some of the agreements provided that the arbitration would occur no later than June 30, 2019. The wage‑reopener negotiations were not successful and AUPE triggered the arbitration process. However, a provincial election was held on April 16, 2019, resulting in a change of government. Consultation and discussions with the new government about an adjournment of the arbitration were unsuccessful, and the arbitrator ruled that she had no jurisdiction to delay the arbitration. The government therefore enacted Bill 9, the essential effect of which was to suspend the arbitration process until October 31, 2019. Several unions commenced actions for a declaration that Bill 9 was unconstitutional. AUPE applied for an interim injunction preventing Bill 9’s implementation. The Court of Queen’s Bench of Alberta applied a three part test and granted the injunction. The judge found that there was a genuine issue to be tried, that there was irreparable harm to the collective bargaining relationship, and that the balance of convenience favoured granting an injunction. A majority of the Court of Appeal for Alberta allowed the appeal and set aside the injunction; a dissenting judge would have dismissed the appeal.

38914

MacDonald Communities Limited v. Alberta Utilities Commission (Alta.)

Administrative law — Boards and tribunals — Regulatory boards 

The applicant, Macdonald Communities Limited applied to have the respondent, Alberta Utilities Commission set rates charged by a privately‑owned wastewater service provider.

The Commission declined to do so, holding that a “public utility” as defined in the Public Utilities Act, R.S.A. 2000, c. P‑45, does not generally include wastewater or sewer services. The Commission’s Review Panel affirmed this decision. The Court of Appeal also confirmed the decision of the Commission.

38975

Dexter Boyce v. Her Majesty the Queen (Ont.)

Charter of Rights  — Constitutional law — Right to life, liberty and security of person 

The applicant was convicted of conspiracy to import a narcotic and importation of a narcotic arising from his part in a failed conspiracy to import cocaine from Costa Rica to Toronto. A key part of the Crown’s case was based on documents obtained from Panama (collectively the Panamanian Documents) pursuant to the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp .). The trial judge found the Panamanian Documents to be reliable, based on the cumulative effect of the documents, as well as corroboration from information obtained through intercepted communications. Based on the Panamanian drug testing, expert evidence testifying about the nature of the three tests used by the Panamanian laboratory, and other evidence that reinforced the reliability of the documents, the trial judge concluded that the substance found in the intercepted packages was cocaine. The applicant’s conviction appeal was dismissed.

38947

Hafeez Fazl also known as Fazl Hafeez v. 2256157 Ontario Ltd. (Ont.)

Civil Procedure –– Judgments and orders –– Interlocutory orders –– Access to justice

This matter involves a mortgage registered by the respondent 2256157 Ontario Ltd (“225 Ltd”) against two properties owned by the applicant, Mr. Fazl. When the mortgage matured, Mr. Fazl failed to pay 225 Ltd. 225 Ltd commenced power of sale proceedings and successfully brought a motion for summary judgment before the Superior Court of Justice. Mr. Fazl appealed this decision, but failed to appear at the hearing. The appeal was dismissed by the Court of Appeal. Mr. Fazl brought a motion to set aside the Court of Appeal’s judgment on the grounds that he did not attend the hearing because he was never served a notice of the hearing date. The Court of Appeal dismissed the motion on the grounds that Mr. Fazl had failed to prove that non‑attendance was the result of accident or mistake.

38831

Daniel Gaudreau, Nathalie Bombardier, Fiducie familiale Daniel Gaudreau v. Québec Maple Syrup Producers, Attorney General of Quebec

- and -

Attorney General of Canada (Que.)

Civil procedure — Appeals — Notice of constitutional question to Attorney General of Quebec

In 2014, the respondent Québec Maple Syrup Producers applied for an injunction and for seizures before judgment against the applicants Mr. Gaudreau et al. In defence, Mr. Gaudreau et al. alleged the constitutional invalidity of the Quebec legal scheme governing the interprovincial sale of maple sap and maple syrup. They gave a notice of constitutional question to the Attorney General of Quebec. In 2019, an updated notice was served on the Attorney General of Quebec, who applied for the dismissal of the notices. 

The Superior Court dismissed both notices. It found that the circumstances did not warrant authorizing the late filing of the 2019 notice and that the 2014 notice had become moot. It also dismissed an application for a stay of proceedings pending a decision by the Court of Appeal. The Court of Appeal refused leave to appeal, finding that the trial judge’s exercise of discretion had not been unreasonable.

38893

Bernadine Marie Vavrek v. Darryl Kevin Vavrek (Alta.)

Family law — Support — Child support — Financial disclosure

The parties separated in 2006 and divorced the following year after reaching an agreement regarding support and a division of property. The mother informally requested corporate financial disclosure from the father but was unsuccessful. In 2018, the mother served the father with a Notice to Disclose.  When the father failed to completely comply, the mother brought a motion to obtain proper financial disclosure dating back to 2010, to pursue a retroactive child support adjustment. The court ordered the respondent to provide a number of financial documents pertaining to his Federal Child Support Guidelines income by November 30, 2018. Two weeks after the November 30, 2018 deadline passed and not having received all of the court‑ordered documents, the mother filed a contempt application and sought a further order compelling disclosure of the missing information.

The motion judge declined to deal with the contempt motion. Instead, the court ordered the father to produce an expert Guideline income report within 30 days, and the parties were then to complete questioning within 15 days thereafter with a view to determining what documentation would be required to complete disclosure, with a special chambers hearing to be scheduled if necessary. The mother obtained an order staying the order to attend for questioning. Her appeal from the order of the motion judge was dismissed.

38910

Heiko Peter Wiechern v. Maili Lorraine Wiechern (Man.)

Family law — Support — Child support — Shared custody

The parties are parents of three children. The eldest is no longer a child. The parties separated after eight years of marriage in 2008 and entered into a shared custody arrangement with respect to their children. Child support was settled by way of a consent final order in 2011, that was varied on consent in 2013. The father’s income was higher than the mother’s and, therefore, he paid a set‑off amount to the mother. The father sought a variation in child support due to a change in the shared custody arrangement. The mother sought an increase in child support based upon the father’s increase in income. The application judge determined the amount of support for each year in issue for both the father and the mother then applied a set‑off. As a result, the father was ordered to pay increased ongoing child support for the youngest child and arrears of child support. The Court of Appeal reduced the amount of retroactive child support, but otherwise dismissed the father’s appeal.

38978

Dahir Mohamed v. Farhiyo Tahlil Farah (Ont.)

Family law — Custody and access 

The applicant father, Mr. Dahir Mohamed, and the respondent mother, Ms. Farhiyo Tahill Farah, have three children. Between 2010 and 2018, the Ontario Superior Court of Justice issued four family law orders relating to custody and access for the three children, ultimately resulting in the mother having sole custody of the children, with supervised access rights for the father.

The applicant father sought to challenge all four orders. His appeal from all four orders was dismissed by Justice De Sousa of the Ontario Superior Court of Justice on February 28, 2019, who found that the appeal had no merit, based on the incomplete state of the record. A further appeal to the Ontario Court of Appeal was dismissed unanimously on July 18, 2019 (with written reasons provided on July 22, 2019).

38937

Harold Russell, Brian Russell v. Northumberland Co-Operative Limited (N.B.)

Commercial law — Corporations 

The defendant co‑operative was founded by a group which included the applicants’ father. The applicants inherited their father’s membership and continued to be members of the co‑operative for many years, selling all their milk production to it. When the co‑operative sold its assets in 2014, the applicants unsuccessfully requested a distribution allocation of the sales proceeds of $1,000,000, in recognition of their status as longstanding founding members. Instead, the distribution formula proposed by the board of directors and approved by a majority of members of the co‑operative resulted in an allocation to the applicants of $353,601.13, plus interest, paid over three years.

The applicants commenced an action in damages for an oppression remedy, claiming that the defendant had breached their reasonable expectations and treated them unfairly, unjustly, and in an oppressive manner. The defendant brought a motion for summary judgment. A Judge of the New Brunswick Court of Queen’s Bench granted the motion for summary judgment and dismissed the applicants’ action. The New Brunswick Court of Appeal dismissed the appeal.

38906

L.A.N. v. Child and Family Services of Western Manitoba and Attorney General of Manitoba (Man.)

Charter of Rights  — Right to fair hearing — Status of persons — Child protection 

The respondent, Child and Family Services of Western Manitoba (the “Agency”), sought a permanent order of guardianship for the child, who had been living with the same foster family for more than two years. This was opposed by the child’s mother who proposed continued temporary guardianship. At a pre‑trial conference in 2017, the Agency indicated that it would proceed with a motion for summary judgment for an order for permanent guardianship. The plan was for the child to remain in the long‑term foster care with no plan for adoption, and that visitation between the mother and child could continue as long as it was in the child’s best interests.

The motion judge at the summary judgment hearing ordered that the child be made a permanent ward of the Agency. The mother filed a notice of constitutional question, challenging the application of the summary judgment rules to child protection proceedings where a permanent order of guardianship was sought, as a violation of her Charter  rights. The Court of Appeal dismissed the mother’s appeal.