APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37999

1068754 Alberta Ltd. as sole trustee of the DGGMC Bitton Trust v. Agence du revenu du Québec (Que.)

Financial institutions – Banks – Taxation

The Agence du revenu du Québec sought bank documents relating to DGGMC, a trust of which 1068754 Alberta Ltd. is the sole trustee. The documents in question were held by a branch of the National Bank of Canada located in Calgary. DGGMC was being audited under Quebec’s Taxation Act because the Agence suspected that it was required to pay tax in Quebec.

The Superior Court dismissed 1068754 Alberta Ltd.’s application to quash the demand for documents made by the Agence, finding that it was not a seizure. Although the demand had to be communicated to the branch of account under the Bank Act, it was the bank as a whole, not the branch as a separate legal entity, that was notified.

The Court of Appeal dismissed 1068754 Alberta Ltd.’s appeal, holding that the demand for documents was a seizure but that it did not have extraterritorial effect under the applicable provision of the Bank Act. Moreover, the Agence had not exceeded its jurisdiction.

37861

R.S. v. P.R. - and - Attorney General of Quebec (Que.)

Family law – Divorce – Private international law

This case concerns the exercise of discretion on the ground of lis pendens provided for in art. 3137 of the Civil Code of Québec (“Code”), which authorizes a court to stay its ruling where an action between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the action can result in a decision which may be recognized in Quebec. The focus of this case is the possible recognition in Quebec of a decision applying art. 1096 of the Belgian Civil Code (“Belgian Code”), which provides for the revocation at will of gifts between spouses. The parties are Belgian citizens who were residing in Quebec when they commenced parallel divorce proceedings. The respondent P.R. applied first to the Belgian authority for a divorce and the liquidation of the matrimonial regime under Belgian law. The applicant R.S. applied in Quebec for a divorce as well as provisional, accessory and safeguard measures under the law applicable in the province. P.R. intended to avail himself the Belgian provision and filed a motion to dismiss the Quebec proceedings on the ground of lis pendens. The Quebec Superior Court dismissed the motion to dismiss. The Court of Appeal allowed the appeal, set aside the trial judgment and allowed the motion for an international lis pendens in part.

37893

Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme v. Carleton University (Que.)

Reception of a thing not due – Pensions – Presumption of life of an absentee

The case concerns Carleton University’s (“Carleton”) legal entitlement to recover amounts it paid to an absentee under a “life only” pension during a period in which he was presumed alive but in fact dead. In Quebec, absentees are presumed alive for a period of seven years, following which any interested person can apply for a declaratory judgment of death. The presumption of life is however temporary and subject to rebuttal. In this case, death was determined some five years following the disappearance of the absentee, which served to set aside the presumption of life. The Act of Death recorded the absentee’s true date of death as the day following his disappearance, and not the date upon which proof of death was established. Claiming restitution under the “reception of a thing not due” provisions of the Civil Code of Québec (the “Code”), Carleton sought to recover the amounts it considered to have been paid in error to the absentee. It moved to institute proceedings against the applicant, Ms. Threlfall, who acted as tutor to the absentee and subsequently as liquidator of his estate. The Superior Court of Quebec found that restitution was possible under the “reception of a thing not due” provisions of the Code, because the pension payments, though initially not made by mistake, became an error once the presumption of life had been rebutted. The conditions for ordering restitution were thus met. The Court of Appeal confirmed the Superior Court’s judgment in most respects.

APPLICATION FOR LEAVE TO APPEAL DISMISSED

37843

Trial Lawyers Association of British Columbia v. Attorney General of British Columbia, Director of Sheriff Services (B.C.)

Constitutional law – Access to Justice – Civil procedure

Section 17(1)(a) of the Jury Act, R.S.B.C. 1996, c. 242 and Rule 12-6(3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, both state that any party requiring a civil jury trial must pay to the sheriff “a sum sufficient to pay for the jury and jury process”. The Trial Lawyers Association of British Columbia petitioned the Supreme Court of British Columbia for a declaration that these provisions are unconstitutional and of no force and effect and the mechanism used by the sheriff to set fees is ultra vires. Hinkson C.J. dismissed the petition by way of summary trial. The Court of Appeal dismissed the appeal.

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