APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38085

Simone Foster v. Her Majesty the Queen (Ont.)

Criminal law - Offences, Elements of offence

The applicant, Ms. Foster, left Toronto to visit some relatives in Jamaica. While Ms. Foster was in Jamaica she socialized with D.J. a few evenings. According to Ms. Foster, D.J. told her that he wanted her to bring something to his friend in Canada. That “something” turned out to be cocaine. According to Ms. Foster, D.J. made some threats including harm to Ms. Foster, and to her relatives in both Jamaica and Toronto. The next day, D.J. provided Ms. Foster with the bra in which the cocaine was secreted, as well as a second bra and a shirt to wear over it. He drove her to the airport. He reiterated his threats and reminded Ms. Foster that she would be under surveillance during and after the return flight to Toronto. In Toronto, at the secondary inspection, a clothing oddity led to her detention. A pat-down search led to her arrest, and a strip search. The strip search revealed that the bra Ms. Foster was wearing contained 1.2 kg of cocaine. Ms. Foster did not notify anyone about her predicament. After a trial by judge and jury, Ms. Foster was convicted of importing cocaine. Ms. Foster’s conviction appeal was dismissed.

37932

Toronto Real Estate Board v. Commissioner of Competition (Federal)

Administrative law - Competition tribunal

The applicant, the Toronto Real Estate Board (“TREB”) is a trade association that operates a multiple listing service for the Toronto area that is not available to the general public. TREB’s database contains information about active and past residential property listings, including information pertaining to historical sale prices. TREB’s members have full access to the database at any time which enables them to attract and provide services to clients. Many brokers operate sections of their websites where their clients can log in and view information on virtual office websites (“VOWs”). The resulting efficiencies enable those realtors to offer their services at a lower cost to clients. TREB has adopted a binding rule, however, prohibiting members from posting historical data for clients on their VOWs. There was no restriction though upon how members may communicate the same disputed data to clients through other delivery mechanisms such as in person, by email, or by fax. The Commissioner of Competition brought an application for an order under s. 79(1) of the Competition Act, R.S.C. 1985, c. C-34, prohibiting TREB from engaging in anti-competitive acts, alleging that its data restrictions for VOWs substantially lessened competition. TREB claimed that the restrictions did not have the effect of substantially preventing or lessening competition, stating that the restrictions were due to privacy concerns and its copyright interest in its database. TREB was found to have engaged in non-competitive practices.

37964 Attorney General of Canada v. Oleg Shakov, et al. (Fed.)

Employment law - Public service - Procedure

After the previous Director of International Programs (Division) for the Office of the Commissioner for Federal Judicial Affairs (FJA) left unexpectedly, the respondent Mr. Shakov was appointed on an interim basis (the term position). He was believed to have the skills and knowledge to quickly and effectively assume the responsibilities of the Director because of his years of experience working as a consultant in the Division. However, he had limited French language proficiency. The linguistic profile for the position was therefore set as “English essential”, although the role had previously been classified as bilingual. There were no permanent francophone employees in the Division. However, all subordinate positions were classified as bilingual and meetings were typically conducted in English and French. Mr. Shakov later improved his French-language skills to meet the minimum requirements. Subsequently, he obtained another appointment. His eligibility for the subsequent appointment was premised on his already holding an internal position. The Public Service Commission (PSC) conducted an audit of the FJA’s action in appointing Mr. Shakov to the term position. The PSC investigator concluded that the (other) respondents Mr. Giroux and Ms. Clemenhagen had engaged in behaviour that amounted to improper conduct by having set the language profile of the position as English only and in having decided to staff the position through an unadvertised process. The investigator recommended that Mr. Giroux and Ms. Clemenhagen be enrolled in remedial staffing training, that their authority to make appointments be revoked until the completion of such training and that Mr. Shakov’s term appointment be retroactively revoked. The PSC adopted the investigator’s conclusions and ordered the remedies that she proposed. Mr. Shakov, Mr. Giroux and Ms. Clemenhagen sought judicial review of the PSC’s decision. The Federal Court (FC) and a majority of the Federal Court of Appeal (FCA) concluded that the PSC had failed to consider the exigent circumstances facing the Division, while a dissenting justice at the FCA concluded otherwise.

37980 Groupe Platinum Construction 2001 inc., et al. c. Ville de Blainville (Que.)

Judicial review – Municipal law – Expropriation

In February 2007 and December 2009, Platinum et al. purchased lots in the city of Blainville. In August 2009, some of the lots were given “conservation” zoning. The city later passed, among other things, a resolution setting out its undertaking to become the owner of the lots within 12 months after a certificate of authorization was issued for a project in the Chambéry neighbourhood, where the lots in question were located. It obtained that certificate in 2010. During the years that followed, the parties undertook negotiations for the acquisition of the lots by mutual agreement, but they never reached an agreement. In 2013, Platinum et al. instituted proceedings in the Superior Court asking that the city be ordered to commence proceedings to expropriate the lots.

The Superior Court dismissed the application, since it found nothing in the evidence that showed an undertaking by the parties. It also found that the legitimate expectation principle was not applicable in this case, since the evidence showed that Platinum had acquired the lots knowing the city’s intentions with regard to them. In addition, s. 570 of the Cities and Towns Act gave the city a discretion with regard to the method of acquiring immovables. The exercise of that discretion was therefore not subject to judicial review.

The Court of Appeal was of the view that the Superior Court had not erred in holding that it could not order the city to expropriate the lots in question. It found that s. 570 of the Cities and Towns Act gave the city the choice to acquire immovables by expropriating them or by purchasing them by mutual agreement and that, through a by-law, the city had reserved that discretion.

37850 Kevin Pepper v. Standard Life Assurance Company of Canada (Ont.)

Limitation of actions – Insurance – Denial of Coverage

On February 17, 2010, Mr. Pepper sued The Standard Life Assurance Company of Canada for payment of long-term disability benefits. Standard Life brought a summary judgment motion to have the action as against it dismissed as statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Mr. Pepper made a cross-motion for a declaration that his action against Standard Life is not statute-barred and for a judgment dismissing the limitation period defence.

Mr. Pepper was injured on March 13, 2005. He had short- and long-term disability benefits from Standard Life. The insurance policy provided no right to appeal or an appeal process for claimants who are denied benefits, but Standard Life provided Mr. Pepper with repeated opportunities to appeal its refusals of short- and long-term benefits. Mr. Pepper successfully appealed the refusal of short-term benefits, but had no success appealing the refusal of long-term benefits. Transitional benefits were paid until October 31, 2007. In early January 2008, before receiving a decision on his final appeal, Mr. Pepper retained counsel. On February 25, 2008, Standard Life denied that appeal, again inviting Mr. Pepper to provide additional information. Mr. Pepper believed that his benefits had not been finally terminated. Evidence from a representative of Standard Life indicated that Mr. Pepper’s long-term disability claim had not been finally denied. From then until the commencement of the claim in February 2010, counsel requested and received the payment summary on the claim, but there was no other activity on it.

The motions judge found that discoverability concerns meant that the limitation period did not begin to run until on or about March 1, 2009. He dismissed Standard Life’s motion and granted Mr. Pepper’s cross motion. The Court of Appeal allowed the appeal and issued an order dismissing the action, holding that Mr. Pepper should have been aware that he had a cause of action against the insurer when it stopped paying his long-term disability benefits on November 1, 2007. No claim of estoppel was available against the insurer.

38065 Michael Lacoste-Méthot v. Her Majesty the Queen (Que.)

Criminal law - Courts, Jurisdiction - Motion to disqualify lawyer from acting

The applicant is charged with conspiracy to traffic in certain controlled substances. Approximately eight months after the applicant’s counsel first appeared on his behalf, the Crown successfully brought a motion to have her removed as counsel on the basis of a conflict of interest. The applicant’s counsel challenged that decision by way of writ of certiorari in the Superior Court of Quebec, and the Crown responded by way of motion to dismiss. The court granted the Crown’s motion, finding that counsel’s challenge did not relate to the jurisdiction of the provincial court, nor did the decision disclose errors of law on the face of the record. The Court of Appeal dismissed the appeal.

37941 Alamgir Hussain v. Royal Bank of Canada (Ont.)

Charter - Fundamental justice - Judgments

The respondent, Royal Bank of Canada brought a motion for summary judgment for amounts owing to it from Mr. Hussain.

The motion judge found this was an appropriate case to grant a summary judgment and ordered Mr. Hussain to repay the amounts owing to the Bank. The motion judge also dismissed Mr. Hussain’s counterclaim. The Court of Appeal dismissed the appeal finding no merit in Mr. Hussain’s arguments that the motion judge had erred and found no basis to interfere with the motion judge’s decision.

37857 L. B. v. Toronto District School Board, et al. (Ont.) (Publication Ban)

Education law - Human rights - Remedies

The applicant L.B. filed an application before the Human Rights Tribunal of Ontario, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, alleging that the Toronto District School Board discriminated against him while he was in Grade 9 on the basis of disability. L.B. had been provided with an Individual Education Plan (“IEP”) since Grade 2. In secondary school, L.B. began to exhibit poor attendance within the first week of his Grade 9 year and his attendance problems increased during the winter months until he effectively stopped attending school. L.B. then withdrew from that public school to attend a private school instead, for the remainder of the Grade 9 year and for the remainder of high school. The Tribunal awarded L.B. general damages for discrimination, because he had not been seen by any professional staff, he did not have access to all of the supports included in his IEP and his mother was not informed of any potential alternatives to removing him from the school to meet his needs. However, the Tribunal refused to award L.B. special damages to compensate him for the tuition and all other costs for his attendance at the private school. This remedial decision was confirmed in a subsequent Tribunal Reconsideration decision. On judicial review, however, a panel of the Superior Court held that L.B. was entitled to special damages, for the remainder of the Grade 9 year only. The Court of Appeal dismissed L.B.’s motion for leave to appeal.

38104 City of Burnaby v. Trans Mountain Pipeline ULC, et al. (Federal)

Constitutional law - Division of powers - Federal paramountcy - Interjurisdictional immunity

The Trans Mountain expansion project includes a twinning of the existing Trans Mountain pipeline system in Alberta and B.C. with construction of new and modified facilities, including facilities in the City of Burnaby (Burnaby) where the pipeline terminates. When the project was approved in late 2016, a certificate of public convenience and necessity was issued by the National Energy Board (the Board) and was subject to conditions including a requirement that Trans Mountain Pipeline ULC (Trans Mountain) comply with all of the conditions, unless the Board otherwise directs. The Board had authorized the terminal work in Burnaby and, in order to proceed, Trans Mountain sought approval from Burnaby by submitting four preliminary planning approval applications and a tree plan in June 2017. By late October, Burnaby had not decided on any of Trans Mountain’s applications and claimed they remained incomplete. The outstanding approvals prevented Trans Mountain from commencing its work. Trans Mountain therefore brought a motion to the Board seeking an order that would exempt it from compliance with Burnaby’s bylaws. The motion also included a notice of constitutional question in relation to the applicability and operability of these bylaws. The Board found that Burnaby’s bylaw review process was unreasonable, and caused unreasonable delay. It relieved Trans Mountain from obtaining preliminary plan approvals and permits under Burnaby’s tree bylaw by declaring those bylaws to be inapplicable to the pipeline work at the terminal. The Federal Court of Appeal dismissed Burnaby’s application for leave to appeal.