APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation v. Governor General in Council, Minister of Aboriginal Affairs and Northern Development, Minister of Finance, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport and Minister of Natural Resources (FC)
Aboriginal law – Treaty rights – Duty to consult
In 2012, the Minister of Finance introduced two Omnibus Bills that amended Canada’s environmental protection and regulatory legislative scheme. Canada did not consult the applicant Mikisew Cree First Nation on these changes. In 2013, Mikisew filed a judicial review application seeking declaratory and injunctive relief, alleging that the responsible federal Ministers and the Crown as a whole had a duty to consult Mikisew regarding the development of the legislative amendments, to the extent that they had the potential to affect Mikisew’s treaty rights.
The Federal Court allowed the judicial review application in part, issuing a declaration on the duty to consult. Although there was no duty to consult before a bill is introduced into Parliament (by reason of the principle of parliamentary sovereignty and the doctrine of the separation of powers), the Crown was under a duty to consult Mikisew when the bills were introduced in Parliament – i.e., to give notice to Mikisew and a reasonable opportunity to make submissions.
The Federal Court of Appeal allowed Canada’s appeal, set aside the declaration, and dismissed the application for judicial review, finding that legislative action was not a proper subject for judicial review. The majority judgment ruled that the Federal Court had no jurisdiction under the Federal Courts Act; the source of the power exercised by the Ministers was legislative in nature. As well, importing the duty to consult into the legislative process offends the doctrine of the separation of powers and the principle of parliamentary privilege. A concurring judgment concluded that the duty to consult was not in fact triggered by laws of general application, as was the case here. Mikisew’s cross-appeal of the declaration was also dismissed.
3091-5177 Québec Inc., c.o.b. as Éconolodge Aéroport v. Lombard General Insurance Company of Canada - and between - 3091-5177 Québec Inc., c.o.b. as Éconolodge Aéroport v. AXA Insurance Inc. - and - Promutuel Portneuf-Champlain, société mutuelle d'assurance générale (Que.)
Insurance law – Property insurance – Exclusion clauses
The applicant Éconolodge Aéroport hotel offered a park and fly service that included accommodation, breakfast, parking for a car while out of the country and an airport shuttle service. A customer’s vehicle was stolen from the hotel’s parking lot.
That customer therefore filed a claim for the theft of his vehicle with his insurer, AXA Insurance Inc., which compensated him and, in return, brought an action in subrogation against the hotel. The hotel argued that the claim was covered by its insurance policy, so it brought an action in warranty against the respondent Lombard General Insurance Company of Canada.
However, Lombard refused to defend Éconolodge, arguing that the [translation] “custody, control or management” exclusion in the insurance policy applied. The Court of Québec allowed the action in warranty. The Court of Appeal allowed the appeal.
Promutuel Portneuf-Champlain, société mutuelle d'assurance générale v. Lombard General Insurance Company of Canada (Que.)
Insurance law – Property insurance – Exclusion clauses
The Éconolodge Aéroport hotel offered a park and fly service that included accommodation, breakfast, parking for a car while out of the country and an airport shuttle service. The vehicle of a person insured by the applicant was stolen from the hotel’s parking lot. The applicant compensated its insured and, in return, brought an action in subrogation against the respondent, the hotel’s insurance company. The respondent denied the insurance coverage, relying on the exclusion clause for movable property that was in the hotel’s custody or that the hotel had the power to control or manage. The Court of Québec allowed the action against the respondent. The Court of Appeal allowed the appeal.
Kwesi Millington v. Her Majesty the Queen (B.C.)
Criminal law – Perjury – Unreasonable verdict – Issue estoppel
Following a public inquiry into the death of Mr. Robert Dziekanski, a visitor from Poland who was tasered by RCMP officers at the Vancouver International Airport and who was pronounced dead shortly thereafter, the applicant, along with three other RCMP officers involved in the incident, were charged with perjury and tried in the Supreme Court of British Columbia. The applicant and another officer were convicted. The other two officers were acquitted. The charge of perjury against the applicant related to testimony he gave at the inquiry. The trial judge found that the applicant had lied at the inquiry about what he had perceived during the incident and about whether he discussed the details of the incident with the other officers before giving his statements to the investigators. The trial judge also found that the applicant’s account of the incident was unquestionably inaccurate in material respects when compared to a video of the incident taken by a bystander. The Court of Appeal unanimously dismissed the applicant’s appeal.
Benjamin Robinson v. Her Majesty the Queen (B.C.)
Criminal law – Perjury – Unreasonable verdict – Motive
Following a public inquiry into the death of Mr. Robert Dziekanski, a visitor from Poland who was tasered by RCMP officers at the Vancouver International Airport and who was pronounced dead shortly thereafter, the applicant, along with three other RCMP officers involved in the incident, were charged with perjury and tried in the Supreme Court of British Columbia. The trial judge summarized the Crown’s allegations against the applicant as follows:
The Crown contends that [the applicant] and his fellow officers set out to mislead investigators with exaggerated accounts of Mr. Dziekanski’s actions in an effort to maximize the threat he purportedly posed. Then, at the Inquiry, when faced with [a bystander’s] video that demonstrated the inaccuracy of those accounts, the Crown says [the applicant] lied under oath in an attempt to justify his use of force and to explain the strikingly similar, but wrong, versions of events he and his fellow officers all initially provided to [investigators]. [At para. 21]
The applicant and another officer were convicted The other two officers were acquitted. The applicant appealed his conviction, arguing that the verdict was unreasonable and that a miscarriage of justice had occurred because the trial judge misapprehended certain evidence. A majority of the Court of Appeal dismissed the appeal.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Her Majesty the Queen v. John Wayne Mock (Alta.)
Criminal law – Appeals – Powers of courts of appeal
On February 22, 2012, Mr. Mock fatally shot his brother. He was tried for second degree murder. The jury heard conflicting testimony from experts regarding whether Mr. Mock was not criminally responsible by reason of mental disorder at the time of the offence. The jury convicted Mr. Mock of second degree murder. The Court of Appeal found the verdict to be unreasonable and substituted a verdict of not criminally responsible on account of mental disorder.
Dennis A. Keay v. Her Majesty the Queen (FC)
Charter of Rights – Torts – Negligence – Taxation
The Applicant, Mr. Keay alleged that he suffered damages and other losses as a result of actions and omissions by the Canada Revenue Agency (“CRA”) and its agents or employees. He asserted that the conduct of the CRA and certain of its officials in the reassessments of his 2003 and 2004 tax returns was negligent, an abuse of power, constituted misfeasance in public office, unlawfully interfered with or converted his rental income and expenses to the benefit of his former spouse and violated his rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Mr. Keay further asserted that the CRA and certain of its officials were willfully blind, withheld material information from him and ignored material facts. This conduct, he contends, caused him to suffer unnecessary costs and expenses as well as emotional distress.
Mr. Keay’s action was dismissed as was his subsequent appeal.
Centres Dentaires Lapointe inc. v. Commission des normes, de l’équité, de la santé et de la sécurité du travail - and - Administrative Labour Tribunal (Que.)
Administrative law – Judicial review
On November 1, 2013, the Commission des lésions professionnelles (“CLP”) dismissed the applicant’s appeal and determined that the dentists working in its establishments were independent operators who were considered workers within the meaning of s. 9 of the Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001 (“AIAOD”). Since the dentists were considered to be in the applicant’s employ, the CLP found that their salaries had to be included in the applicant’s payroll. That decision confirmed a previous decision made by the CLP on November 9, 2005. The applicant later applied unsuccessfully to the CLP for a review of that decision. The applicant then filed an application for judicial review of the CLP’s refusal and initial decision. The Quebec Superior Court dismissed the applicant’s application for judicial review and the Court of Appeal dismissed the motion for leave to appeal.
Brian Giroux, William Hatt, Winfred Risser, Jack B. Allen, together as The West 65 30 Scallop Quota Group Association v. Attorney General of Canada (FC)
Administrative law – Judicial review – Commercial fishing licenses
The Applicant fishers, collectively known as the West 65 30 Scallop Quota Group Association, are members of the East of Baccaro fleet who fish in SFA 29 East and West. They are opposed to the way by which members of the Full Bay Fleet, a term used for all fishers from the Bay of Fundy region, were allowed to fish in SFA 29 West. The applicant fishers brought an application for judicial review of fishing licenses issued by the Ministry of Fisheries and Oceans to certain rival fisherman, the Full Bay Fishers. They alleged the Minister exceeded its jurisdiction by extending, using license conditions, the waters in which the Full Bay Fishers could take scallops.
The Federal Court dismissed the application for judicial review. The Federal Court of Appeal also dismissed the appeal.
Marie Chantal Jean v. Attorney General of Quebec (Que.)
Criminal law – Order of forfeiture
The applicant challenged an order of forfeiture of offence‑related property made against an immovable she had purchased a few months after a search warrant was executed in the immovable. The search had led to the dismantling of a sophisticated drug production operation. The Court of Québec allowed the motion for order of forfeiture of offence-related property. The Court of Appeal dismissed the appeal.
Grand Palladium Vallarta Resort & Spa, formerly known as Palladium Vallarta Resort & Spa, Desarrollos Dine S.A. de C.V. dba Hotel Palladium Vallarta v. Kerry Toews, Todd Toews and Her Majesty the Queen in Right of Alberta, as represented by the Minister of Health (Alta.)
Private international law – Choice of forum – Court having jurisdiction
The respondent Kerry Toews alleges that she suffered personal injuries in February 2009 while staying at the applicant Palladium Hotel, a resort located in Mexico. Her husband is also a respondent on this leave application and at all material times they were residents of Edmonton, Alberta. The Palladium Hotel was wholly owned by another applicant, Desarrollos, a Mexican corporation, and Desarrollos was wholly owned by a corporate entity located in the Netherlands. The Toews statement of claim alleged breach of contract and torts. Palladium Hotel and Desarrollos applied for a stay of the action against them, for either lack of jurisdiction pursuant to the Alberta Rules of Court, AR 124/2010,or because Mexico is the more appropriate forum. A Master in Chambers dismissed their application, finding that Alberta had jurisdiction in the action and was the more convenient forum. The Master’s dismissal decision was upheld by a Justice of the Court of Queen’s Bench and later, a unanimous Court of Appeal.