APPLICATIONS FOR LEAVE TO APPEAL GRANTED
38254
Hydro‑Québec v. Louise Matta, Claude Ouellet, Christiane Léveillé, Diane Ouellet, Patrick Léveillé, Josée Léveillé, Entreprises Caslon inc. (QC)
Expropriation — Real rights — Servitudes — Conventional servitudes — Legal servitudes — Extinction of servitude — Indemnity
In 1972, the Quebec government authorized Hydro‑Québec to build an electric power transmission and distribution line between the Jacques‑Cartier and Duvernay transformer stations. Hydro‑Québec acquired the perpetual real rights of servitude it needed by expropriation and signed, with the owners of the immovables concerned, an agreement setting out, among other things, the purpose of the servitude and the indemnity being paid. In 1982, Hydro‑Québec made changes that resulted in the power in various lines being redirected. From that time on, the transmission line on the land expropriated in 1972 was used for electricity coming from James Bay. The owners were not informed of those changes. In 2015, the Quebec government authorized Hydro‑Québec’s project to build the Chamouchouane‑Bout‑de‑l’Île transmission line. The route of that new line was to be partly on the site of the servitudes acquired in 1972, parallel to the line already built. The respondents, the current owners, opposed Hydro‑Québec’s project and refused to provide access to their immovables. On November 23, 2015, Hydro‑Québec applied for an injunction. The respondents argued that the servitudes on their immovables did not permit the construction of new transmission lines between transformer stations apart from the ones contemplated in 1972. In their cross‑application, they claimed damages for unauthorized use of the servitudes since 1982, for the increase in the power going through the lines and for the inconvenience associated with neighbourhood disturbances. On May 31, 2017, the Superior Court allowed Hydro‑Québec’s application for a permanent injunction and ordered the respondents to cease any obstruction and to provide unrestricted access to the immovables so that Hydro‑Québec could perform all the work required to carry out the project. On May 25, 2018, the Court of Appeal allowed the respondents’ appeal against Hydro‑Québec, set aside the trial judge’s decision, declared that Hydro‑Québec had no real right that allowed it to use the respondents’ properties to set up the Chamouchouane‑Bout‑de‑l’Île line, declared that the servitudes established by the parties had not been extinguished, and remitted the matter to the Superior Court to hear the cross‑application.
38562
International Air Transport Association v. Instrubel, N.V., Republic of Iraq, Ministry of Industry of the Republic of Iraq, Ministry of Defence of the Republic of Iraq, Salah Aldin State Establishment
- and between -
Republic of Iraq, Ministry of Industry of the Republic of Iraq, Ministry of Defence of the Republic of Iraq, Salah Aldin State Establishment v. Instrubel, N.V.
- and -
International Air Transport Association
(QC)
Courts — Jurisdiction — Private international law — Extraterritoriality — Civil procedure — Provisional remedies — Seizure before judgment
Instrubel, a Dutch company, is seeking to enforce two international arbitration awards against the Republic of Iraq. After discovering that Iraq may have significant assets in Quebec, Instrubel began judicial proceedings in the Quebec courts for recognition and enforcement of the awards. Specifically, the International Air Transport Authority (“IATA”), whose headquarters are in Montreal, collects and remits fees from international airlines for use of airspace on behalf of airports and aviation authorities like the Iraqi Civil Aviation Authority (“ICAA”). Instrubel sought and obtained from the Superior Court of Quebec a writ of seizure before judgment by way of garnishment against IATA with respect to funds it collected and holds for the ICAA. After learning that the funds in question are in fact located in IATA’s bank account in Switzerland, the Republic of Iraq brought a motion to quash the writ on various grounds, including a challenge to the territorial jurisdiction of the Quebec courts to issue and enforce the writ.
A judge of the Superior Court of Quebec granted the motion to quash in part, finding that the writ of seizure was invalid insofar as it related to property located outside the province. The Quebec Court of Appeal set aside that decision, reinstated the writ of seizure in full, and dismissed the motion to quash, finding that the Quebec courts had jurisdiction to issue and enforce the writ.
APPLICATION FOR LEAVE TO APPEAL REMANDED
38347
Tyler Williams-Cleghorn v. Her Majesty the Queen
(NB)
Charter of Rights and Freedoms — Right to liberty — Right to bail
Mr. Williams-Cleghorn was arrested on May 12, 2018 and charged with multiple offences. At a bail hearing on May 16, 2018, a Provincial Court judge ordered detention until trial. On August 2, 2018, a review of detention hearing was held as required pursuant to s. 525 of the Criminal Code . The hearing was adjourned to August 27, 2018. On August 27, 2018, Clendenning J. held that Mr. Williams-Cleghorn had failed to establish unreasonable delay in bringing the matter to trial and ordered continued detention. On September 20, 2018, the Court of Appeal dismissed a motion for leave to appeal on the basis it had no jurisdiction.
The Supreme Court remanded the case to the Court of Queen’s Bench of New Brunswick for disposition in accordance with Corey Lee James Myers v. Her Majesty the Queen, 2019 SCC 18.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
38472
Iberville Developments Ltd., Iberville Developments Leasing Ltd., Carrefour de l'Estrie Inc., 6482651 Canada Inc. and 4317653 Canada Inc. v. Agence du revenu du Québec
(QC)
Taxation — Income tax — Assessments — Interprovincial tax planning known as “Quebec Year‑End Shuffle”
Between 2004 and 2006, the applicants carried out a series of transactions related to the sale of several shopping centres. They made use of interprovincial tax planning known as the “Quebec Year‑End Shuffle”. First, some of the applicants, Iberville Developments Ltd., Carrefour de l’Estrie Inc. and Iberville Developments Leasing Ltd., transferred the immovable property in question by tax rollover to the other applicants, 6482651 Canada Inc. and 4317653 Canada Inc., in order to defer the capital gain realized and the recapture of capital cost allowance. Those applicant companies established their fiscal year‑end at February 28, 2006 for federal and Ontario tax and at March 19, 2006 for Quebec tax. On March 1, 2006, the companies purchased shares in two Ontario partnerships, which had the effect of transferring their business activities to Ontario. As a result of the transfer, the proportion of their income in Quebec on March 19, 2006 was less than 3% based on the business allocation formula set out in the Regulation respecting the Taxation Act. For the fiscal year ending on February 28, 2006, the companies reported no capital gain or recapture of capital cost allowance for Ontario tax purposes. The tax planning therefore enabled the applicant companies to avoid nearly all provincial tax on the capital gains realized in Quebec. The respondent, the Agence du revenu du Québec, issued notices of reassessment primarily for 2004 to 2006, particularly in relation to these transactions. It applied the general anti‑avoidance rule (GAAR) set out in the Taxation Act, with the result that neither the tax rollovers nor the different fiscal year‑ends were recognized. The applicants appealed the notices of reassessment to the Court of Québec, which dismissed the appeal in five cases and remitted the notices to the Minister in two cases for reconsideration in accordance with its judgment. The Court of Appeal dismissed the appeal from the Court of Québec’s decision in the seven cases, which were joined in a single proceeding.
38524
Joshua Dylan Petrin v. Her Majesty the Queen
(SK)
Criminal law — Evidence — Witnesses — Disclosure — Trial fairness
The applicant, Mr. Petrin, a high‑ranking member of a group involved in drug operations, was charged with first degree murder contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C‑46, and conspiracy to commit murder contrary to s. 465(1) (a) of the Criminal Code. These charges arose after the applicant asked two of his associates to “take care” of his right‑hand man who left the group without his permission. A woman was shot and killed when the two associates fired shots into the front of her home mistakenly believing that her address was that of the right‑hand man.
At trial, the judge availed herself of a Vetrovec warning because the Crown’s case was largely based on the testimony of witnesses who were involved with the group. Mr. Petrin was ultimately convicted on the two charges. At the Court of Appeal, Mr. Petrin’s application for fresh evidence relating to payments made to Crown witnesses by police and relating to a criminal record held by one of said witnesses was dismissed. The appeal from the convictions was also dismissed.
38536
Yamna Amzallag v. Ville de Sainte-Agathe-des-Monts
(QC)
Charter of Rights and Freedoms — Right to be secure against unreasonable search or seizure
The applicant owned a building in Ville de Sainte‑Agathe‑des‑Monts (“town”). Between 2009 and 2012, the town conducted several exterior inspections of the building and concluded that it constituted a danger to anyone wishing to live in it. The town instituted an action to have repair work done within a required time period or, in the alternative, to have the building demolished, in accordance with ss. 227 and 231 of the Act respecting land use planning and development, CQLR, c. A‑19.1. In preparation for the proof and hearing, and despite the applicant’s refusal, the town inspected the interior of the building after gaining access through an unlocked window.
38537
Serge Amzallag, Zipora Milstain v. Ville de Sainte-Agathe-des-Monts
(QC)
Charter of Rights and Freedoms — Right to be secure against unreasonable search or seizure
The applicants owned a series of buildings in Ville de Sainte‑Agathe‑des‑Monts (“town”). Between 2010 and 2012, the town conducted several exterior inspections of the buildings. It concluded that they were in a state of disrepair and that they constituted a danger to anyone wishing to live in them. The town sought an order for the demolition of several of the applicants’ buildings under ss. 227 and 231 of the Act respecting land use planning and development, CQLR, c. A‑19.1. In preparation for the hearing of its principal action on the merits, and despite the female applicant’s refusal, the town inspected the interior of the buildings. The town’s representatives used the services of a locksmith to gain entry to certain buildings and entered some units through a window.
38053
Isaël Blais v. Her Majesty the Queen
(QC)
Charter of Rights and Freedoms — Criminal law — Search and seizure — Interception of communications
Using a cell phone seized during an investigation concerning a person who was the main drug dealer at a secondary school, a police officer texted Mr. Blais and asked whether he could sell him drugs. After a few exchanges, Mr. Blais agreed to meet him and sell him 30 methamphetamine tablets. When Mr. Blais arrived at the agreed meeting place, he was arrested by the police. He was convicted of nine counts of trafficking in a substance and possession for the purpose of trafficking. On appeal, he argued, among other things, that prior judicial authorization was required for a police officer to initiate communication by text messaging using the identity of a third party whose cell phone had been lawfully seized. The Court of Appeal dismissed the appeal.
38126
David Joseph Beairsto v. Her Majesty the Queen
(AB)
Charter of Rights and Freedoms — Criminal law — Search and seizure — Interception of communications
A police officer impersonated one of Mr. Beairsto’s drug trade associates using the associate’s phone which had been seized in the course of a separate investigation. The communications between the officer and Mr. Beairsto led to a cocaine transaction whereby Mr. Beairsto sent a brick of cocaine in the mail to the address provided by the officer, and in return, the officer sent him a weighted package that was supposed to contain cash. After confirming his identity to receive delivery of the cash, Mr. Beairsto was arrested. The phone Mr. Beairsto used to communicate with the officer was found on him in the course of the search incident to arrest. At trial, Mr. Beairsto was unsuccessful in his attempt to exclude the evidence. He was convicted of one count of trafficking cocaine. The Court of Appeal dismissed the appeal.
38559
Pascal Croteau v. Comité de révision, Josée Forget, Martin Pham Dinh, Centre intégré de santé et de services sociaux de l’Outaouais
(QC)
Administrative law — Judicial review — Natural justice — Audi alteram partem
The applicant is the chief of general medicine at a hospital centre. On July 17, 2017, he sent the council of physicians, dentists and pharmacists an incident and complaint report concerning another physician, in which he recommended that a discipline committee be set up. The complaint was referred for investigation and decision to a medical examiner, who concluded that there was no basis for establishing a discipline committee in the case. The applicant applied for a review of that decision on the ground that the medical examiner had not met with him. After requesting and obtaining a supplementary examination, and given the fact that the medical examiner had considered the applicant’s written complaint, a review committee confirmed the medical examiner’s decision that there was no need to establish a discipline committee and his recommendation that an official reprimand be issued. The applicant applied to the Superior Court for judicial review of that decision.
38576
Shulamit Mass v. Canada Trustco Mortgage Company (TD Canada Trust), Jharna Chandok, Estate of Surjit Chandok
(BC)
Civil procedure — Appeals — Evidence
The respondents obtained orders in foreclosure proceedings against the Ms. Mass’s property in 1999. She had been the victim of an ongoing fraud, having been induced to mortgage her home and advance funds to the fraudster. Years later, Ms. Mass commenced proceedings to challenge the validity of the mortgages. Her action was dismissed as statute‑barred and on the basis of res judicata. Her appeal from that order was put on the inactive list after a year. Ms. Mass’s application to have the appeal returned to the active list was dismissed. Ms. Mass missed the deadline to apply to the court to vary the order. She applied to extend the time to do so but that motion was dismissed. She then applied to the court to vary that order and for an extension of time. That application was dismissed.
38555
Brittany Beaver v. Kenneth Hill
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Attorney General of Ontario
(ON)
Family law — Support — Child support — Aboriginal law — Aboriginal rights — Self‑government
Ms. Beaver and Mr. Hill are Haudenosaunee and are members of the Six Nations of Grand River. They were in an intimate relationship from 2008 to 2013 and had one child, who was born in 2009. Mr. Hill resides on the Six Nations Reserve where he owns a successful business. The child has been in Ms. Beaver’s primary care since birth. She has not worked outside of the home since December, 2008.
In December 2015, Ms. Beaver brought an application for custody under the Children’s Law Reform Act and child and spousal support under the Family Law Act. Mr. Hill filed an Answer and defence in February 2016. In March 2016, he filed a Notice of Constitutional Question challenging the jurisdiction of the Superior Court, as well as the applicability of the Children’s Law Reform Act and the Family Law Act, on the basis that he was Aboriginal with the right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee law and processes.
Mr. Hill moved for an order dismissing Ms. Beaver’s family law application, or, in the alternative, for an order staying her application for interim relief in order to allow his constitutional challenge to proceed first. In addition to claims for interim child and spousal support, Ms. Beaver sought a declaration that the Superior Court had jurisdiction to deal with the family law issues and an order striking the Amended Answer, or an order staying Mr. Hill’s constitutional challenge.
The motion judge determined that the court had jurisdiction to adjudicate the parties’ family law dispute. She struck out Mr. Hill’s Amended Answer and dismissed the constitutional claim. In a subsequent motion, Mr. Hill was ordered to pay significant interim child support, and 100 per cent of the child’s extra expenses. The Court of Appeal allowed Mr. Hill’s appeal in part, by granting Mr. Hill leave to amend his pleadings.
38554
Gursher Singh Randhawa v. Her Majesty the Queen
(BC)
Criminal law — Charge to jury — Defences — Self‑defence
Mr. Randhawa admitted to stabbing a number of people during a bar brawl, but claimed he had acted in self‑defence. At his jury trial, the key issue was whether the Crown had disproved beyond a reasonable doubt all three elements of the defence of self‑defence. In his instructions to the jurors, the trial judge indicated that “[i]t does not matter” if they did “not all agree” on which element of the defence of self‑defence had been disproved. Mr. Randhawa was convicted of five counts of aggravated assault and one count of possession of a weapon for a dangerous purpose.
On appeal, Mr. Randhawa argued that the trial judge erred in his jury instructions, and that he ought to have indicated that jury unanimity was required with respect to which one of the three elements of the defence of self‑defence had been disproved, in order to sustain a conviction. Otherwise, the possibility existed that the jurors could have rejected the defence of self‑defence even though they were not unanimous about the third element — i.e., whether Mr. Randhawa’s conduct was “reasonable”. The Court of Appeal unanimously dismissed Mr. Randhawa’s appeal.
