39388 Vincent DeBlois, et al. c. Procureur général du Canada, et al. QC Civil procedure — Appeal — Appeal with leave or as of right
This case arises from disciplinary proceedings pursued by the applicant, the Law Society of Saskatchewan (“LSS”), against the respondent lawyer, Peter V. Abrametz. Those proceedings, which began with an audit investigation initiated in 2012, resulted in a January 10, 2018, decision in which a Hearing Committee of the LSS found Mr. Abrametz guilty of four counts of conduct unbecoming a lawyer. The convictions were for breaches of the Law Society of Saskatchewan Rules and the version of the Code of Professional Conduct that was then in effect. On January 18, 2019, the Hearing Committee ordered Mr. Abrametz disbarred, with no right to apply for readmission as a lawyer prior to January 1, 2021. In its November 8, 2018, stay decision, the Hearing Committee dismissed Mr. Abrametz’s application to stay the proceedings as a result of undue delay constituting an abuse of process. Mr. Abrametz appealed his conviction and the penalty decision to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990, S.S. 1990‑91, c. L‑10.1. The Court of Appeal allowed the appeal in part; it stayed the Law Society proceedings; set aside the imposed penalty and costs awards but findings of professional misconduct were maintained.
Criminal law — Charter of Rights — Right to counsel
The respondent, Patrick Dussault, was arrested for murder and arson. Before his trial, he moved to exclude from the evidence an incriminating statement he had made to the police while being questioned; the reason he gave was that the statement had been obtained as the result of a violation of his right to counsel protected by s. 10(b) of the Canadian Charter of Rights and Freedoms. A voir dire was held. The trial judge dismissed the motion and found that the respondent’s statement was admissible in evidence. At his trial, the jury then found the respondent guilty of second degree murder.
The respondent appealed the verdict. He argued that the trial judge had erred in dismissing the motion to exclude the incriminating statement and in finding that his right to counsel under s. 10(b) had not been violated. The respondent submitted that, in his telephone conversation with his lawyer, the latter had started to advise him but had not finished doing so, and that the refusal of the police to allow the respondent to continue that consultation when his lawyer arrived at the police station was a violation of the police duty to ensure the application of s. 10(b) of the Charter. The Court of Appeal unanimously allowed the appeal, set aside the guilty verdict and ordered a new trial.
Criminal law — Evidence — Verdict
Mr. Courchene lost control of his vehicle and his passenger suffered serious injuries. He was charged with dangerous driving causing bodily harm and impaired driving. A toxicologist gave opinion evidence based on blood samples taken just over two hours after the crash that he was intoxicated at the time of the accident. An accident reconstruction expert opined that he lost control of his vehicle on the shoulder of the highway while speeding in less than ideal conditions. From skid marks on the highway, the trial judge inferred an attempt to pass another vehicle on its right hand side. The trial judge did not rely on the evidence of several witnesses. The trial judge convicted Mr. Courchene of dangerous driving causing bodily harm and impaired driving. The Court of Appeal dismissed an appeal.
Charter of rights — Human rights — Civil liability
The respondent Aviva Engel alleged that the applicant, Shalom Chaim Spira, harassed her for several years. Ms. Engel brought an action against Mr. Spira, seeking non‑pecuniary damages, lost wages and reimbursement for extrajudicial fees. The Court of Quebec granted Ms. Engel’s action in part, and ordered Mr. Spira to pay over $23,000 in damages to Ms. Engel.
Mr. Spira attempted to appeal this decision to the Quebec Court of Appeal. Ms. Engel brought a motion seeking to dismiss the appeal. The Court of Appeal granted Ms. Engel’s motion and dismissed Mr. Spira’s appeal. It found that Mr. Spira’s appeal had been initiated improperly, as the amount in dispute fell below the threshold for an appeal without leave; the proposed appeal also had no reasonable chance of success. In addition, Mr. Spira’s application for leave to appeal after the expiry of the applicable time limit was also dismissed.
Charter of Rights — Right to life, liberty and security of the person
The parties commenced cohabitation in Jamaica in 1990. Together, the parties have one child, who is presently 28 years of age. The family immigrated to Canada in December 2000. Mr. Mullings liquidated all of his assets in Jamaica, including his pension, and used those funds to purchase property in Ontario. Mr. Mullings provided the downpayment and title was taken in joint names for their first home. In 2006, Mr. Mullings relocated to Brandon, Manitoba for employment purposes and the parties sold that home in anticipation of their move. They agreed to purchase another home Ontario, however, before the move to Brandon. Ms. Robertson acquired title to this property in her name alone and she moved in. That property was transferred into joint names in 2011, just prior to the parties’ separation. Mr. Mullings did not financially contribute toward the mortgage, taxes or other expenses related to the property. When his employment ended in Brandon, Mr. Mullings accepted a position in Saudi Arabia from 2008 to 2010. He has been unemployed since his return to Canada. He purchased a home for himself in his own name and moved some of his belongings into that home. At the time of trial, he was living in rental accommodations and was living on $19,000 per annum primarily composed of OAP and CPP payments. He alleged that the date of separation was June 2013. Ms. Robertson maintained that it was October 2011. In 2016, Mr. Mullings filed an application seeking, inter alia, lump sum and periodic spousal support, partition and sale of the home occupied by the respondent, occupation rent, life insurance and medical, dental and extended health coverage, a finding of a joint family venture, unjust enrichment and damages. Ms. Robertson counterclaimed for, inter alia, retroactive child support including special and extraordinary expenses, exclusive possession of the home she occupied and a declaration that she was entitled to all right title and interest in that property. The trial judge dismissed almost all of the parties’ claims and ordered partition and sale of the former family residence. From the applicant’s half share of the net proceeds of sale, he was ordered to pay the respondent $19,000 in reimbursement for their child’s university tuition and half of the carrying costs of the home paid for by the respondent from 2011 until the date of sale. This decision was upheld on appeal. The applicant’s motion to set aside the appeal judgment and for a new hearing were dismissed.
Fiduciary duty — Directors — Real estate development
This case concerns an aborted real estate development. In the first action, the applicant, Ascent One Properties Ltd. alleged that the respondent, Li Chiao Liao, breached her fiduciary duty as a director of the company. That action was dismissed.
In the second action, Ms. Liao’s holding company, the respondent, 0949652 B.C. Ltd. sought the return of a $2.3 million shareholder loan it had provided to Ascent One at its inception, alleging that it took priority over a subsequent $1.3 million advance made to Ascent One by the applicant Fwu Yang. That action was allowed.
Ascent One, Mr. Yang and the respondent Rena Properties Ltd., a holding company owned by Mr. Yang, alleged both errors of fact and law in the trial judge’s reasons. The Court of Appeal dismissed the appeals.
The applicant Vincent DeBlois incorporated the applicant Zen Smoke in 2011 for the purpose of importing, distributing and marketing e‑cigarettes containing nicotine in Canada. In 2009, Health Canada had issued a public advisory stating that e‑cigarettes used to vaporize and administer nicotine were covered by the Food and Drugs Act, R.S.C. 1985, c. F‑27, and the Food and Drugs Regulations, C.R.C., c. 870, and that various authorizations were necessary in order to import, advertise and market them, among other things. After obtaining information from Health Canada about the legislative and regulatory requirements to be met, the applicants imported e-cigarettes for distribution without complying with those requirements. Zen Smoke applied to the Federal Court for judicial review of a Health Canada decision prohibiting the entry of the e-cigarettes into Canada because of violations of the applicable legislative and regulatory provisions. In December 2012, the Federal Court rejected the interpretation of those provisions proposed by Zen Smoke. Despite that decision and the laying of penal charges, the applicants continued their import activities through the United States. However, they ceased their activities in July 2014. In October 2015, the applicants filed an application against the respondents, the Attorney General of Canada, the Department of Health Canada and the Canada Border Services Agency, seeking damages for such things as loss of business opportunities, loss of income, inconvenience and damage to their reputation. They maintained that they had been subjected to harassment and seizures of materials, among other things, that had led to the termination of their operations. The Superior Court dismissed the application and declared it to be abusive. The Court of Appeal declared that an appeal from the trial judgment required leave to appeal. It dismissed the motion for leave to appeal de bene esse.
The applicant, Mr. Poole, operated a vehicle towing business in and around Edmonton, Alberta. He sold his assets in that business to the respondent, City Wide Towing and Recovery Service Ltd. (“City Wide”). The sale included a non-competition agreement restraining Mr. Poole from competing with City Wide for a period of five years in Alberta, British Columbia and Saskatchewan. During this period, Mr. Poole commenced work with DRM Recovery Ltd., a business that City Wide says is in direct competition with them. City Wide brought an action against Mr. Poole and DRM for breaches of the non-competition agreement and an application for an interlocutory injunction. A judge of the Court of Queen’s Bench granted an interlocutory injunction restraining Mr. Poole from competing against City Wide within the geographical area of Alberta, British Columbia and Saskatchewan. A majority of the Court of Appeal allowed Mr. Poole’s appeal in part. It held that while the restrictive covenant was unreasonably broad in its geographic scope, there was a strong prima facie case that it was enforceable upon severance of some of its language. It amended the interlocutory injunction by excising words from it so that the remaining scope was Alberta. A dissenting judge would have allowed Mr. Poole’s appeal and would have set aside the interim injunction rather than applying severance to it.
Mr. Boast was in prison when he became embroiled in an altercation with a corrections officer about whether his cell lights should be on or off. Two officers witnessed the altercation. Crown counsel led evidence that Mr. Boast said to the officer something akin to “Wait until I get released. I’ll get you in the street”. The officer testified that he perceived the utterance as a threat. The officer asked Mr. Boast if he had made a threat and Mr. Boast replied with something akin to “I don’t know what you’re talking about. I didn’t say anything”. Mr. Boast was convicted of uttering a threat and breach of probation. A summary conviction appeal judge refused to admit fresh evidence and dismissed the appeal. The Court of Appeal denied leave to appeal.
Charter of Rights and Freedoms — Right to liberty — Criminal law
Ms. Stewart was stopped in a routine traffic stop and arrested. Her vehicle was searched. Police found 80 pounds of marijuana and 1 kilogram of cocaine hidden in feed bags. At trial, she testified that she had been paid to courier marijuana and she had done so twice before. She testified that she never touched the bags or looked inside them and she had no idea that there was cocaine in them. The trial judge convicted Ms. Stewart of for possession of cocaine for the purposes of trafficking and possession of marihuana for the purposes of trafficking. The Court of Appeal dismissed a cross‑appeal from the conviction for possession of cocaine for the purposes of trafficking.
Mohammed Al-Ghamdi v. College and Association of Registered Nurses of Alberta, Canadian Medical Protective Association, Dr. Theman the registrar College of Physicians and Surgeons of Alberta, Bennett Jones Law Firm and Simon Johnson, Gowling Law Firm, Walter McKall, James R. Sproule, Peace Country Health (formerly Health Region #8), Peace Country Health, a Corporation constituted under the Regional Health Authorities Act, Queen Elizabeth II Hospital and Queen Elizabeth II Hospital, Alberta Health Services, formerly known as Capital Health, Alberta Health Services, Chris Eagle, Verna Yiu, Rollie Nichol, Kevin Worry, James Pope, Albert Harmse, Peter Miles and his partners in Grande Prairie Surgeons Office, Richard Beeknian, Liam McGowan, Bryn Alexander Watson, Joseph Sendziak, Raubenheimer Denkema and his partners in the Grande Prairie Orthopaedic Surgeons Group, Wynand Wessels, Sandra Corbett, Joan Libsekal, Sean Chilton, Marie Johnson, Rita Young, Gail Coristine, Tracey Rice, Chris Bowes, Don Hunt, David Dawson, Doug Perry, Bryce Henderson, Carol Rowntree, Oluwatosin Akindapo Akinbiyi, Scott Wesley Wiens, Saifee Rashiq, Ivan Bernardo, Miller Thomson Law Firm, Corne Booysen, Alika Lafontaine, Chantelle Peter, Carin Strydom, Robert K Staples, Ronald St. Germaine, Brian Muir, Brent Piepgrass, Mary Nasdekin, Theresa Jordan, Michelle Derewianko, Kathy Miller, Avisha Narnaware, Amber Cheveldave, Ashley Much, Belenda Parsons, Cheryl Mayer, Cindy Wendorf, Deb Magusin, Ferne Lacey-Shor, Jill Keddie, Denise Giebelhaus-Graw, Jill Lynk, Sheila Dorschied, Alan Hansen, Jody Fredrickson, Doug Parsons, Beatrice Scott, Melissa Thompson, Michelle Tolton, Carol Uhryn, Kerianne Dunlap, Atara Hustler, Stephanie Malekoff, Barb Vanachte, Desire Pullishy, Ginger Krause, Heather Halwa, Nichole Ressler, Shane Ray, Shawindra Parmar, Wanda Hobbs, Phyllis Pyke, Daniella Mueller, Sheila Dykhuizen, Vickie Kaminski, Deb Gordon, Holly Ljuden, Manish Joshi, Bonny Nelson, Cheryl Meriot, William Hondas, Karen Espersen, Jason Becker, Karen Bouman, Trevor William Theman, James West, Owen Robert Heisler, Kate Reed, Craig Boyer, College of Physicians and Surgeons of Alberta and John Doe and Jane Doe(Alta.)
Over a period of time, Dr. Al‑Ghamdi raised seven legal matters against a number of personal and corporate parties alleging personal and professional wrongs against him. In 2017 ABQB 684, the chambers judge addressed three of those matters. She determined that no further proceedings could be taken against defendants who had not been served in time under r. 3.28 of the Alberta Rules of Court, A.R. 124/2010, struck certain actions pursuant to r. 3.68 as they had no reasonable prospect of success, and summarily dismissed the actions against other defendants under r. 7.3 on the basis that the claims they set out were of no merit.
In 2017 ABQB 685, the chambers judge addressed the other four matters. She found that the originating applications for judicial review had not been filed or served in time, as required under r. 3.15, determined that no further proceedings could be taken against defendants who had not been served in time under r. 3.28 of the Alberta Rules of Court, struck actions against other defendants under r. 3.68 on the basis that the pleadings disclosed no reasonable cause of action, and summarily dismissed the actions against other defendants under r. 7.3 on the basis that there was no merit to the claims.
Dr. Al‑Ghamdi appealed the entirety of both lower court decisions and alleged bias against the chambers judge. The Court of Appeal dismissed both appeals.
Bell Canada, Bell MTS, MTS Inc. v. British Columbia Broadband Association, Competitive Network Operators of Canada (previously known as Canadian Network Operators Consortium Inc.), Distributel Communications Limited, Ice Wireless Inc., Public Interest Advocacy Centre, Vaxination Informatique, Teksavvy Solutions Inc.
Canadian Radio-Television and Telecommunications Commission(F.C.)
The CRTC regulates the provision of wholesale high-speed access services by large telephone and cable companies to small and medium‑sized independent Internet service providers, who use them to provide their own retail Internet and other services to customers. The CRTC also sets the rates that may be charged for those access services. On August 15, 2019, the CRTC issued Telecom Order CRTC 2019‑288, Follow‑up to Telecom Orders 2016‑396 and 2016‑448 – Final rates for aggregated wholesale high‑speed access services, setting out the final rates that could be charged by the applicants to the respondent competitors and applying the rates retroactively. The applicant telephone companies and some large cable companies appealed the Order on the basis of alleged errors in law or jurisdiction, while the respondent medium and smaller Internet service providers defended the Order. The Federal Court of Appeal dismissed the appeal.
Bragg Communications Incorporated (c.o.b. Eastlink), Cogeco Communications Inc., Rogers Communications Canada Inc., Shaw Cablesystems G.P., Quebecor Media Inc. (Videotron Ltd.) v. British Columbia Broadband Association, Competitive Network Operators of Canada (previously known as Canadian Network Operators Consortium Inc.), Distributel Communications Limited, Ice Wireless Inc., Public Interest Advocacy Centre, Vaxination Informatique, Teksavvy Solutions Inc.
Canadian Radio-Television And Telecommunications Commission(F.C.)
The CRTC regulates the provision of wholesale high‑speed access services by large telephone and cable companies to small and medium-sized independent Internet service providers, who use them to provide their own retail Internet and other services to customers. The CRTC also sets the rates that may be charged for those access services. On August 15, 2019, the CRTC issued Telecom Order CRTC 2019‑288, Follow‑up to Telecom Orders 2016‑396 and 2016‑448 — Final rates for aggregated wholesale high-speed access services, setting out the final rates that could be charged by the applicants to the respondent competitors and applying the rates retroactively. The applicant cable companies and some telephone companies appealed the Order on the basis of alleged errors in law or jurisdiction, while the respondent medium and smaller Internet service providers defended the Order. The Federal Court of Appeal dismissed the appeal.
Marie-Claude Hogue, in her capacity as liquidator of the succession of André Hogue, Marie-Claude Hogue, personally and in her capacity as tutor to her minor child Gabriel Hogue-Choquette, Simon Hogue-Choquette v. Attorney General of Quebec(Que.)
André Hogue died in 2006 after being shot in the head. His spouse, Armande Côté, was charged with his murder. At her trial, Ms. Côté presented a motion to exclude evidence, alleging numerous violations of her constitutional rights by Sûreté du Québec officers in the course of their investigation. The motion was granted, most of the evidence was excluded and Ms. Côté was acquitted. The Quebec Court of Appeal allowed the Crown’s appeal and ordered a new trial, but Ms. Côté was ultimately successful in the Supreme Court of Canada, which restored the acquittal in 2011.
Following the Supreme Court’s decision, the applicants brought an action against the Attorney General of Quebec, alleging that the acquittal of Ms. Côté, which was the result of wrongful conduct on the officers’ part, had caused them injury and had infringed their right to security. They also claimed punitive damages.
The Quebec Superior Court dismissed the action, holding that there was no causal link between the officers’ fault and the applicants’ injury. The Quebec Court of Appeal unanimously dismissed the applicants’ appeal.
The parents are both Jordanian citizens who were married in Kuwait in 2008 and lived there throughout their marriage. The parties have three children who are all under the age of twelve. The applicant father still resides and works in Kuwait. They separated in March 2018 after a domestic conflict that occurred in the family home. The father moved out of the family home that day. He obtained a court order that provided him with 12 hours of weekly access time with the children. The mother continued to reside in the family home with the children and she applied for custody and alimony. The court refused the father’s request that the mother and children be required to surrender their passports. In May 2018, the mother and children left Kuwait without the father’s knowledge or consent and travelled to the United States on visas. They crossed the border into Canada, where the mother made a refugee claim on her own behalf and on behalf of the children. In October 2018, the father applied for a return order under s. 23 of the Children’s Law Reform Act that would compel the children to be returned to Kuwait. The mother maintained that the children would suffer serious harm if returned to Kuwait. The application judge granted the father’s application for a return order, finding that the children were not at risk of serious harm if returned to their habitual residence. This decision was overturned on appeal and the father’s application for a return order was dismissed.
Mr. Sandeson was charged with first degree murder. His defence counsel hired a private investigator. The investigator helped develop the defence strategy. Without defence counsel’s knowledge, the investigator also assisted the police officers who were investigating the murder. At trial, Crown counsel disclosed that the private investigator had helped police. The defence moved for a mistrial. The trial judge found a breach of the duty to disclose but denied a mistrial. He held that an adjournment and further cross‑examination would remedy the breach. Trial continued. A jury convicted Mr. Sandeson of first degree murder. He appeal his conviction. The Court of Appeal found that the failure to disclose the conduct of the investigator and the police had precluded full answer and defence. It declared a mistrial and ordered a new trial.
In the early 2000s, a public school in the Town of Theodore, Saskatchewan, closed due to declining enrolments. The closure was opposed by the Theodore community, which had lobbied to keep its school open. After those efforts failed, a petition was submitted to establish a Catholic separate school in the community. Theodore Public reopened as St. Theodore School, with many of the same non‑Catholic students in attendance. The applicant Public School Division, Good Spirit School Division No. 204 (“GSSD”), challenged the government funding for those non-Catholic students now attending a Catholic school. It brought suit against the respondents, the Government of Saskatchewan and the Catholic School Division, Christ the Teacher RCSSD No. 212, seeking declarations that the province’s education funding system is unconstitutional on Charter grounds. Following a 12‑week trial, the Court of Queen’s Bench found that the provisions which enabled funding to Catholic schools respecting the attendance of non‑Catholic students constituted a breach of the state’s duty of religious neutrality under s. 2(a) and an infringement of equality rights under s. 15(1) of the Charter, infringements which were not justified under s. 1. The legislation was declared of no force or effect. A five member panel of the Court of Appeal unanimously allowed the respondents’ appeal and dismissed GSSD’s action. The court found three fundamental errors of law in the approach taken by the court below: (1) the case was framed too narrowly, which resulted in the analysis discounting the parallelism underpinning the province’s approach to education; (2) the principles of the Charter right to freedom of religion were not properly applied; and (3) the court below allowed one part of the constitution, the Charter, to invalidate another part of the constitution, s. 93 of the Constitution Act, 1867.
With the assistance of insider officers and others, a former business partner of Leanne Duscio’s husband defrauded a Paraguayan pension fund, Caja Paraguay de Jubilaciones y Pensiones del Personal de Itaipu Binacional (“Cajubi”) of $12,460,930. Mrs. Duscio’s husband, an undischarged bankrupt who had formerly been a business associate of Mr. Garcia, filtered approximately $3 million of this money through Catan Canada Inc. (“Catan”). Mrs. Duscio was the sole director, officer and shareholder of Catan. Cajubi brought an action against multiple defendants in Canada, including Mrs. Duscio. Despite Mrs. Duscio’s roles and responsibilities in relation to Catan, and although she had signed cheques and authorisations when asked to do so by her husband, Mr. Duscio was found to have been the de facto controlling mind and will of Catan at all relevant times. He also had control over the funds of Columbus Capital Corp., another part of the financial chain. Over the nine months following Columbus Capital’s incorporation, Catan made wire transfers of more than $2.5 million in for Columbus Capital’s purposes, and at least $400,000 of Cajubi’s funds were transferred to Columbus Capital without any attempt at justification.
The trial judge made numerous findings of liability. Among them, he found Mrs. Duscio jointly and severally liable to Cajubi for $3 million for knowingly assisting in the breach of trust orchestrated by the former business associate and Mr. Duscio. Only Mrs. Duscio appealed. The Court of Appeal granted her appeal, set aside the disposition as against her, and ordered new trial concerning the issue of knowing receipt of trust funds as against her.
Constitutional law — Administrative law — Procedural fairness
In 2012, the Canadian Judicial Council was asked to review Justice Girouard’s conduct. A majority of the members of the inquiry committee established to look into the matter recommended that he be removed from office. However, the Council refused to make that recommendation to the Minister of Justice Canada.
In 2016, further to a joint request by the Minister of Justice Canada and the Quebec Minister of Justice, a new inquiry committee was established, this time to review Justice Girouard’s conduct during the previous inquiry. That second committee issued a report concluding that Justice Girouard should be removed from office. Following a review by a second panel of the Council, a majority of judges also concluded that Justice Girouard should be removed from office.
Justice Girouard then applied for judicial review of some of the previous procedural steps and decisions. The Federal Court dismissed his application. Among other things, it found that the requirements of procedural fairness had been met. The Court of Appeal unanimously dismissed the appeal. It held that the Federal Court had not erred in finding that the Council’s decision to recommend Justice Girouard’s removal was reasonable. It also held that there had been no breach of the principles of procedural fairness.