APPEAL ALLOWED

R. v. Myers, 2019 SCC 18 Criminal law — Interim release — Detention review — Accused denied interim release pending trial

SCC No. Case Name Province of Origin Keywords

38381 Attorney General of British Columbia v. Provincial Court Judges' Association of British Columbia BC Constitutional law — Division of powers

38459 Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia and Governor in Council v. Judges of the Provincial Court and Family Court of Nova Scotia, as represented by the Nova Scotia Provincial Judges' Association NS Constitutional law — Division of powers

38275 Ville de Montréal c. Fraternité des policiers et policières de la Ville de Montréal, et al. QC Legislation — Statutory interpretation

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords

38233 Facebook, Inc. v. Deborah Louise Douez BC Civil procedure ― Class actions ― Certification

38331 Wai Kin Yip v. HSBC Holdings plc and David Bagley ON Private international law — Courts — Jurisdiction

38385 Solar Power Network Inc., LDREC SPN LP, SPN LP 10, SPN LP 12, SPN LP 14, SPN LP 15, SPN LP 16 and SPN LP 17 v. ClearFlow Energy Finance Corp. ON Contracts — Commercial contracts — Remedies

38285 Information and Privacy Commissioner of Ontario v. Children's Lawyer for Ontario and Ministry of the Attorney General for Ontario ON Access to information — Personal information

38338 Merck Canada inc. and Merck Frosst Canada & Co. v. Camilo Baratto QC Civil procedure — Class actions

38403 S.C.W. v. Her Majesty the Queen BC Charter of Rights and Freedoms – Delay

38291 Cheryl Stein v. British Columbia Human Rights Tribunal, Vancouver Coastal Health Authority and Sean Freeze BC Administrative law – Judicial review – Standard of review

38247 Canadian National Railway Company v. Corporation of the City of Thunder Bay and Fort William First Nation ON Contracts — Interpretation — Specific performance

38327 Navistar Canada ULC (formerly Navistar International Corporation), Navistar Inc., Navistar Canada Inc. and Harbour International Trucks Ltd. v. N&C Transportation Ltd., T&S Transportation Systems Inc. and Pacific Ocean Transportation Inc. BC Civil procedure — Class actions

38146 Satoma Financial Trust v. Her Majesty the Queen FC Taxation — Income tax — Assessments

38409 Saskatchewan Crop Insurance Corporation v. Glenn McVeigh, Grant Lyle Jewell, Brent Everett McVeigh and Dalton Beverly Jewell SK Crown law — Crown liability

38325 Hwlitsum First Nation, as represented by its Chief and Council, Chief Raymond Wilson, et al. v. Attorney General of Canada, et al. BC Civil procedure — Standing — Aboriginal law

38287 Hyman Stanley Labis, personally and his capacity as liquidator to the succession of the late Lilyan Rotgaus v. Éric Labis, et al. QC Contracts — Gifts — Gift inter vivos

38232 Catalyst Capital Group Inc. v. Brandon Moyse and West Face Capital Inc. ON Appeals — Evidence — Spoliation

38363 Government of Manitoba, et al. v. Ronald Edward Joyce, et al. MN Torts — Nuisance — Crown law

APPEAL ALLOWED

R. v. Myers, 2019 SCC 18

Criminal law — Interim release — Detention review — Accused denied interim release pending trial

On appeal from a decision of the British Columbia Supreme Court (Riley J.), confirming the accused’s detention status.

On January 4, 2016, M was arrested and charged with several firearm offences. He sought bail for the first time in respect of these charges on November 9, 2016, but his application was dismissed, as the judge was not satisfied that any terms of release would adequately address the risk that M would, if released, commit other offences or interfere with the administration of justice. Later that month, M sought a review of his detention order under s. 520  of the Criminal Code , which was denied on the basis that the judge saw no significant change that would justify releasing M. In March 2017, Crown counsel asked the defence whether M wished to pursue a 90‑day bail review under s. 525  of the Criminal Code . Given the existence of competing lines of authority, the British Columbia Supreme Court heard submissions from both parties on the correct approach to the review under s. 525 . It concluded that the correct test at a s. 525  hearing involves a two‑step process: the accused must first convince the reviewing judge either that there has been an unreasonable delay in the proceedings on the Crown’s part or that the passage of time has had a material impact on the initial basis for detaining the accused, and, if either of these thresholds is met, the judge must then determine whether the detention of the accused remains justified within the meaning of s. 515(10)  of the Criminal Code . Because of the formulation of the test, M made no submissions and his detention order was confirmed.

M pled guilty on January 29, 2018 to reduced charges and was sentenced to 30 months’ imprisonment. Since M is no longer in pre‑trial custody, his appeal to the Court is moot; however, as guidance is needed to establish the correct approach to a detention review hearing under s. 525  of the Criminal Code , the Court exercised its discretion to hear the appeal on the merits.

Held (9-0): The appeal should be allowed.

In this case, the Court must apply the principles of statutory interpretation to determine the correct approach to a detention review under s. 525 , and to explain the place of such a review within the larger context of pre‑trial custody in Canada. In Canadian law, the pre‑trial release of accused persons is the cardinal rule and detention, the exception. Yet practices vary widely in terms of when s. 525 detention review hearings happen, whether they are mandatory, what factors are considered and which test is applied.

The purpose of the s. 525  hearing is to prevent accused persons from languishing in pre‑trial custody and to ensure a prompt trial. Parliament sought to achieve this purpose by subjecting lengthy pre‑trial detentions to judicial oversight at set points in time, by affording an opportunity to have a judge consider whether the continued detention of an accused person is justified, and by conferring on the judge a discretion to expedite the trial of an individual in pre‑trial detention. The right not to be denied reasonable bail without just cause, which is enshrined in s. 11 (e) of the Canadian Charter of Rights and Freedoms , operates as a key organizing principle of Part XVI of the Criminal Code . Release is favoured at the earliest reasonable opportunity and on the least onerous grounds. The experience of pre‑trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence. It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well‑being and on their families, and the loss of their livelihoods. Parliament intended s. 525  to operate as a safeguard. This section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand.

The correct approach to the s. 525  detention review is as follows. First, the jailer has an obligation to apply for the detention review hearing immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503  of the Criminal Code . Where there is an intervening detention order under s. 520 , 521  or 524  of the Criminal Code  following the initial appearance of the accused and before the end of the 90‑day period, the 90‑day period begins again. Accused persons who have not had a full bail hearing are also entitled to a review under s. 525 , since the fundamental purpose of s. 525  is to afford an opportunity to have a judge scrutinize the detention itself, and these individuals should not be denied that safeguard. Upon receiving the application from the jailer, the judge must fix a date and give notice for the hearing. The s. 525 hearing is an automatic procedure, and the mandatory obligations to make the application and to fix a date lie with the jailer and the judge respectively. Form letters that place the burden on the accused to pursue a s. 525  hearing are inconsistent with the law. The hearing must be held at the earliest opportunity. At the hearing, the reviewing judge may refer to the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review hearings, and should show respect for any findings of fact made by the first‑level decision maker if there is no cause to interfere with them. Both parties are also entitled to make submissions on the basis of any additional credible or trustworthy information which is relevant or material to the judge’s analysis, and pre‑existing material is subject to the criteria of due diligence and relevance.

At the hearing, unreasonable delay is not a threshold that must be met before the detention of the accused is reviewed. Parliament did not intend to restrict the court’s ability to review the detention of an accused at a s. 525 hearing to situations in which there has already been an unreasonable delay. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of s. 515(10) , which sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice. In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre‑trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not — justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre‑trial detention.

Citation:                               R. v. Myers, 2019 SCC 18

SCC File No. :                      37869

Reasons for Judgment: Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. concurring)

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17634/index.do

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

38381

Attorney General of British Columbia v. Provincial Court Judges' Association of British Columbia  (B.C.)

Constitutional law — Division of powers — Judicial independence — Judicial compensation

A Judicial Compensation Commission [“JCC”] is formed every three years in British Columbia according to the Judicial Compensation Act, SBC 2003, c. 59, [“the Act”]. Its mandate is to make recommendations to the Chief Judge of the provincial court and the Attorney General of British Columbia on all matters respecting the remuneration, allowances, and benefits of provincial court judges. The JCC’s recommendations are not binding. The legislature may resolve to accept or reject one or more of the recommendations. However, the legislature must provide reasons for rejecting any of the recommendations. Prior to tabling the JCC report in the legislature in October 2017, cabinet received a confidential submission from the Attorney General concerning the JCC’s 2016 recommendations. After cabinet considered the submission, the Attorney General tabled the JCC report and moved that the legislature resolve to accept eight and reject two of the JCC’s recommendations. Accompanying reasons were also tabled setting out the government’s proposed response. The Provincial Court Judges’ Association filed for judicial review of the legislature’s decision to reject two JCC recommendations. As part of this process, a Master of the Supreme Court of British Columbia ordered the Attorney General’s submission to cabinet disclosed. Appeals of the Master’s decision were dismissed at both the Supreme Court of British Columbia and the Court of Appeal for British Columbia.

38459

Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia and Governor in Council v. Judges of the Provincial Court and Family Court of Nova Scotia, as represented by the Nova Scotia Provincial Judges' Association  (N.S.)

Constitutional law — Division of powers — Judicial independence — Judicial compensation

The Provincial Judges’ Salary and Benefits Tribunal [“the Tribunal”] periodically reports to the Minister of Justice on the appropriate level of remuneration for judges of the Provincial and Family Courts of Nova Scotia pursuant to the Provincial Court Act, RSNC c. 238. The Minister of Justice is required to deliver the Tribunal report to the Governor in Council which occurred in December of 2016. Under the Act, the Governor in Council may confirm, vary or reject the tribunal’s recommendations along with reasons. Statutory matters delegated to the Governor in Council are submitted to the Executive Council in a Report and Recommendation. A confidential submission from the Attorney General concerning the Tribunal report was set out in the Report and Recommendation. The Governor in Council varied one of the five recommendations of the Tribunal along with reasons for the variation. In March of 2017, the Nova Scotia Provincial Court Judges’ Association applied for judicial review of the Governor in Council’s variation. A subsequent motion requested the production of the Report and Recommendation along with an additional affidavit. The Supreme Court of Nova Scotia ordered the report disclosed although portions were protected by solicitor-client privilege. A subsequent appeal to the Nova Scotia Court of Appeal upheld the order.

38275

Ville de Montréal v. Fraternité des policiers et policières de la Ville de Montréal and Benoît Fortin  - and -  Attorney General of Quebec and Association de bienfaisance et de retraite des policiers et policières de la Ville de Montréal  (Que.)

Legislation — Statutory interpretation — Ordinary sense of words — Pension plan

The respondent Fraternité des policiers et policières de Montréal (the “Fraternité”) is the union that is certified to represent all the police officers of the city of Montréal. The other respondent, Benoit Fortin, is a retired police officer of the city of Montréal. Following the enactment of the Act to foster the financial health and sustainability of municipal defined benefit pension plans, CQLR, c. S-2.1.1(“Law 15”), the police officers of the city of Montréal reacted with a number of job actions, because the Act  ordered a restructuring of pension plans established by municipal bodies as well as of the plan applicable to Quebec municipal employees, which would have an impact on the two pension plans applicable to city of Montréal police officers. They applied for a declaration that the Act  does not apply to those pension plans. The Superior Court dismissed the originating application for a declaratory judgment. The Court of Appeal allowed the appeal, with one judge dissenting.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38233

Facebook, Inc. v. Deborah Louise Douez  (B.C.)

Civil procedure ― Class actions ― Certification

Ms. Douez claims that Facebook, Inc. committed the tort set out in s. 3(2) of the Privacy Act, R.S.B.C. 1996, c. 373, by using her name and membership photograph without consent in order to advertise or promote the sale or trade of property or services. From January 2011 to May 2014, Facebook, Inc. conducted a form of advertising referred to as a sponsored story whereby an advertisement appeared on a member’s feed accompanied by a statement that another member, one of the recipient’s friends, had liked the advertised product, service or entity. The endorsing member’s name and profile were used without remuneration or notice. Ms. Douez applied to certify a class proceeding. Griffins J. certified a class proceeding but revised the stated issues. The Court of Appeal deleted one criterion of the class definition but otherwise dismissed an appeal from the certification decision.

38331

Wai Kin Yip v. HSBC Holdings plc and David Bagley  (Ont.) (Civil) (By Leave)

Private international law — Courts — Jurisdiction — Securities

Mr. Yip is the proposed class representative in an action brought against HSBC Holdings plc and its former Head of Group Compliance. The shares of HSBC Holdings were traded on the London and Hong Kong Stock Exchanges, and were subject to secondary listings on the Bermuda and Paris Euronext Stock Exchanges. Mr. Yip bought shares in HSBC Holdings using a Hong Kong bank account on the Hong Kong Stock Exchange and accessed the disclosure documents from HSBC Holdings’ website. No claim was brought against HSBC Canada.

Mr. Yip asserted a statutory claim for secondary market misrepresentation under Part XXIII.1 of the Securities Act, R.S.O. 1990, c. S.5, and common law negligent misrepresentation. He alleged that he and the other purchasers of HSBC Holdings’ shares or American Depository Receipts were misled by its continuous disclosure documents and public statements that indicated that HSBC Holdings had complied with the anti-money laundering and anti-terrorist financing laws and that it had not participated in an illegal scheme to manipulate certain international benchmark interest rates; that those representations were shown to be false in 2012, and that the misrepresentations caused investors in HSBC Holdings to suffer about US$7 billion in losses because their purchases were made at artificially inflated prices.

The respondents moved to stay or dismiss the action for lack of jurisdiction simpliciter and because Ontario is forum non conveniens. Mr. Yip made a cross motion for a declaration that HSBC Holdings is a “responsible issuer” under the Securities Act, s. 138.8. The motions judge dismissed the claim under the Securities Act and stayed the common law claim, holding that the Ontario courts did not have jurisdiction simpliciter, and that Ontario was forum non conveniens even if it did have jurisdiction. The Court of Appeal dismissed Mr. Yip’s appeal.

38385

Solar Power Network Inc., LDREC SPN LP, SPN LP 10, SPN LP 12, SPN LP 14, SPN LP 15, SPN LP 16 and SPN LP 17 v. ClearFlow Energy Finance Corp.  (Ont.)

Contracts — Commercial contracts — Remedies — Interest

In 2015 ClearFlow Energy Finance Corp [“ClearFlow”] began making a series of loans to Solar Power Network Inc. [“SPN”] and its subsidiaries to finance the development and construction of renewable energy projects. Financing took the forms of both loans and promissory notes. All of the loans contained three components: 1) a base rate of interest; 2) an administrative fee; and 3) a discount fee. The base rate of interest was 12% per annum before maturity and 24% thereafter. The discount fee was 0.003% of the outstanding loan per day due on the date of repayment and every day thereafter while the loan remained outstanding. In 2016 SPN began to encounter financial difficulties and defaulted on many of the loans. SPN acknowledged its indebtedness in forbearance agreements. ClearFlow agreed to forbear on SPN’s default and to provide further financing. SPN secured replacement financing and disputed the amount of accrued interest owing to ClearFlow. The Ontario Superior Court of Justice determined that the discount fee contravened the Interest Act, RSC 1985, c. I-15 [“the Act ”], and ordered all interest owing adjusted to 5% per annum. In granting the appeal and dismissing the cross-appeal, the Court of Appeal for Ontario determined that the discount fee was a formula that allowed for the calculation of annualized interest that totalled less than 5% per annum and therefore did not offend the Act .

38285

Information and Privacy Commissioner of Ontario v. Children's Lawyer for Ontario and Ministry of the Attorney General for Ontario  (Ont.)

Access to information — Personal information — Solicitor-client privilege 

Two children were the subject of a custody and access dispute between their parents. In 2008, the Office of the Children’s Lawyer (“OCL”) was appointed and she was requested to conduct an investigation, report and make recommendations pursuant to s. 112(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. In May, 2010, a final order was made, terminating the father’s access to the children. In 2012, the father brought a motion to change and the matter was again referred to the OCL. There were two relevant court orders that were made, one in Thunder Bay, and the other in Milton. In January, 2014 the father requested access to information from Ministry of the Attorney General (“MAG”) pursuant the Freedom of Information and Protection of Privacy Act (“FIPPA”). He sought records in both of the OCL’s litigation files. MAG issued a decision letter denying access to the requested records, advising the father that it did not have custody or control of the records and that FIPPA did not apply. The father appealed that decision to the Information and Privacy Commissioner of Ontario who determined that the records were “in the custody or under the control” of MAG for the purposes of FIPPA and ordered that MAG respond to the father’s request. On judicial review to Divisional Court, the decision of the Adjudicator was upheld. The OCL’s appeal was granted by the Court of Appeal and the decision of the Adjudicator was set aside.

38338

Merck Canada inc. and Merck Frosst Canada & Co. v. Camilo Baratto  (Que.)

Civil procedure — Class actions — Conditions for authorization of action

Mr. Baratto, respondent, moved to institute a class action against the Merck applicants in relation to their marketing of the medications Proscar (containing 5mg of finasteride) and Propecia (containing 1mg of finasteride). As the proposed class representative, Mr. Baratto claims to have suffered serious adverse physical, sexual and psychological reactions that persisted long after the 30-day period during which he took Proscar. Among other things, Mr. Baratto alleges that Merck had a duty to warn and failed to warn the members of the proposed class, physicians and health authorities of these persistent side effects. The first judge refused to authorize the class action. In her view, Mr. Baratto’s proposed action failed to meet the first two criteria set out in art. 575 of the C.C.P. The Court of Appeal allowed the appeal and authorized the class action on the basis that the first judge imposed too heavy a burden on Mr. Baratto by weighing the probative value of his evidence against that of Merck.

38403

S.C.W. v. Her Majesty the Queen  (B.C.) (Criminal) (By Leave)

Charter of Rights and Freedoms — Delay — Right to be tried within a reasonable time

The applicant plead guilty to sexual interference and child pornography-related offences in Provincial Court. The applicant’s application for a stay of proceedings for unreasonable delay for breach of s. 11(b) of the Charter of Rights and Freedoms was dismissed. The applicant was sentenced to seven years imprisonment. The Court of Appeal dismissed the appeal.

38291

Cheryl Stein v. British Columbia Human Rights Tribunal, Vancouver Coastal Health Authority and Sean Freeze  (B.C.)

Administrative law — Judicial review — Standard of review — Human rights — Duty to accommodate 

Ms. Stein unsuccessfully applied for a job with the Vancouver Coastal Health Authority. She brought a complaint of discrimination based on age to the British Columbia Human Rights Tribunal. Prior to the hearing she asked for and was granted accommodation due to her disabilities (hearing days to conclude at 1:30pm each day). On six of the nine days of hearing, the Tribunal continued past 1:30pm. The Tribunal dismissed Ms. Stein’s complaint. She applied for a reconsideration and the Tribunal dismissed her request. Ms. Stein applied for judicial review which was dismissed as was her appeal to the Court of Appeal.

38247

Canadian National Railway Company v. Corporation of the City of Thunder Bay and Fort William First Nation  (Ont.)

Contracts — Interpretation — Specific performance

In 1906, Grand Trunk Pacific Railway, now Canadian National Railway Company, and the Town of Fort William, now amalgamated into the Corporation of the City of Thunder Bay, entered into an agreement for the construction of a railway bridge over the Kaministiquia River. The bridge includes railway tracks down the center, lanes for vehicles on either side of the tracks, and sidewalks on the outer edges. The 1906 agreement gives Fort William the perpetual right to cross the bridge and committed Grand Trunk to maintain the bridge in perpetuity. In 2013, CN closed the bridge to vehicular traffic. It claims that the bridge cannot safely be reopened for motor vehicles without structural changes beyond its maintenance obligation. The City of Thunder Bay applied for an order compelling CN to take all necessary steps to reopen the bridge to vehicular traffic. Fort William First Nation was added as a party because of the community’s use of the bridge and its location on appropriated reserve lands. Smith J. dismissed the application. The Court of Appeal allowed an appeal. It declared CN in breach of the 1906 agreement. It ordered CN to open and maintain the bridge for motor vehicle traffic.

38327

Navistar Canada ULC (formerly Navistar International Corporation), Navistar Inc., Navistar Canada Inc. and Harbour International Trucks Ltd. v. N&C Transportation Ltd., T&S Transportation Systems Inc. and Pacific Ocean Transportation Inc.  (B.C.)

Civil procedure — Class actions — Certification of common issues — General causation

The respondents filed an action against the applicants concerning the design, manufacture and sale of heavy-duty diesel truck engines developed to meet regulatory standards introduced in 2010 to reduce nitrous oxide emissions. Most truck manufacturers in North America used two systems: advanced exhaust gas recirculation (“EGR”) and selective catalytic reduction (“SCR”), but the respondents equipped their trucks with EGR technology alone. They sold the EGR trucks between 2010 and early 2014. Their marketing materials praised the EGR-only system and criticized the SCR-technology. The class members pleaded that the respondents knew or ought to have known that there were significant problems with the EGR-only approach because they had received persistent complaints from customers which demonstrated that the trucks were dangerous and not suited for their intended purpose. They also pleaded that the marketing materials contained misrepresentations, were intended to induce the purchase of EGR-only trucks, and failed to disclose the respondents’ knowledge of the defects associated with EGR technology. The class members claimed the right to rescind their purchase agreements and recover the consideration paid for those trucks.

The chambers judge certified the class action subject to certain conditions. Of the 16 proposed common issues, 12 were certified. The applicants’ appeal was dismissed, but the respondent’s cross-appeal of the chambers judge’s refusal to certify the three issues relating to misrepresentation in marketing materials was allowed in part.

38146

Satoma Financial Trust v. Her Majesty the Queen  (F.C.)

Taxation — Income tax — Assessments — Trusts

Generic drug manufacturing activities were financed through a series of financial transactions involving the creation of corporations and trusts. As a result of those transactions, a total of $6,250,100 in income (in the form of dividends) was transferred from an existing corporation to a new trust that was created, the applicant Satoma Financial Trust (“Satoma”). The dividends were transferred on a tax‑free basis. The respondent, Her Majesty the Queen (the Canada Revenue Agency — “CRA”), issued assessments against Satoma based the general anti‑avoidance rule (“GAAR”) set out in the Income Tax Act . The CRA alleged that the transactions in question provided a “tax benefit” to Satoma for the purpose of tax avoidance, which was an “abuse” of the provisions of the Act . Satoma appealed the CRA’s assessments.

The Tax Court of Canada dismissed Satoma’s appeals from the assessments. It found that Satoma had received a “tax benefit” as a result of an “avoidance transaction” that constituted an “abuse” of the provisions of the Act  pursuant to the GAAR. The Federal Court of Appeal dismissed Satoma’s appeal, finding that the trial judge had not erred in her decision or her analysis.

38409

Saskatchewan Crop Insurance Corporation v. Glenn McVeigh, Grant Lyle Jewell, Brent Everett McVeigh and Dalton Beverly Jewell  (Sask.)

Crown law — Crown liability 

The applicant is Saskatchewan Crop Insurance Corporation (“SCIC”). In 1998, SCIC commenced actions against the respondents alleging that they had improperly received crop insurance indemnities from SCIC based on misrepresentations made to it by them about their crop production and yield information. The respondents’ application to dismiss SCIC’s action for delay was granted. After considering all of the grounds for leave to appeal, the Court of Appeal held that there was no basis for appellate intervention. On the issue of Crown immunity, the Court of Appeal held that SCIC had waived its immunity. The Court of Appeal dismissed the appeal.

38325

Hwlitsum First Nation, as represented by its Chief and Council, Chief Raymond Wilson, and Councillors Lindsey Wilson, Janice Wilson, Jim Hornbrook and Danny Wilson on their own behalf and on behalf of the members of Hwlitsum First Nation v. Attorney General of Canada, Her Majesty the Queen in the Right of the Province of British Columbia, City of Vancouver, Vancouver Park Board, City of Richmond, Corporation of Delta, Capital Regional District, Islands Trust, Tsawwassen First Nation, Penelakut Tribe and Musqueam Indian Band  (B.C.) (Civil) (By Leave)

Civil procedure — Standing — Aboriginal law — Abuse of process 

The Hwlitsum First Nation [“HFN”], previously known as the Wilson Family of Canoe Pass Band, is a collective of Status Indians descended from the Coast Salish community of Lamalcha Indians. The HFN filed a representative action in November 2014 seeking declarations of Aboriginal rights and title over the lower mainland of British Columbia, southern Vancouver Island, the Gulf Islands, and lands and waters related to those areas. The Penelakut Tribe had previously commenced a claim of Aboriginal rights and title to the land held by the Lamalcha Tribe in 2003. Canada, supported by all respondents, brought an application in 2015 to strike the HFN proceeding on the basis that the HFN do not have standing to bring an action as a representative proceeding and that it is an abuse of process. The British Columbia Supreme Court summarily dismissed the representative claim which was subsequently upheld by the British Columbia Court of Appeal.

38120

Dominique Ouimet v. Simon Leblanc  (Que.)

Charter of Rights — Fundamental justice — Civil procedure — Abuse of process

Following the dissolution of their relationship, Ms. Ouimet sued Mr. Leblanc for unpaid loans and other sums of money allegedly advanced to him. After a series of procedural steps in the litigation, Mr. Leblanc filed an application seeking an order declaring the proceeding to be an abuse of process, dismissing the action against him and awarding him damages.

Justice Bisson of the Quebec Superior Court allowed Mr. Leblanc’s application in part. Ms. Ouimet’s proceedings were declared abusive, and her action against Mr. Leblanc was dismissed. Ms. Ouimet was ordered to pay Mr. Leblanc $16,306 in damages and $1,000 in punitive damages. The Quebec Court of Appeal unanimously dismissed Ms. Ouimet’s motion seeking leave to appeal, concluding that no error resulted from Bisson J.’s decision or his analysis that would warrant intervention; Ms. Ouimet’s case demonstrated a clear history of abuse of process.

38287

Hyman Stanley Labis, personally and his capacity as liquidator to the succession of the late Lilyan Rotgaus v. Éric Labis and Mona Labis  — and —  Scotia Capital Inc.  (Que.)

Contracts — Gifts — Gift inter vivos — Manual gift — Letter of direction — Investment account

The applicant’s wife died of cancer on March 29, 2012. The day before she died, she signed a letter of direction in which she asked her financial adviser at DWM Securities Inc. (“DWM”) to immediately transfer an investment account to the respondents, her children, Éric et Mona Labis. That same day, in the afternoon, the respondents went to DWM, opened an account with their mother’s financial adviser and requested the transfer of funds. Because of administrative delays at DWM, the transfer did not appear on the statements until April 11, 2012. However, the portfolio evaluation sent to the respondents by DWM on April 13, 2012 showed that the account had been opened in their names on March 28, 2012 and also showed the amount of money that had been transferred from their mother’s account. The applicant, Mr. Labis, who was his wife’s sole heir, applied to the Quebec Superior Court to annul the gift. He argued that there was no valid manual gift for the purposes of art. 1824 of the Civil Code of Québec (“C.C.Q.”) and that under art. 1820 C.C.Q., the gift had been made mortis causa and was not rendered valid by circumstances. The trial judge dismissed the application and the Quebec Court of Appeal dismissed an appeal by Mr. Labis.

38232

Catalyst Capital Group Inc. v. Brandon Moyse and West Face Capital Inc.  (Ont.)

Appeals — Evidence — Spoliation

The applicant, Catalyst Capital Group Inc. and the respondent, West Face Capital Inc. are Toronto-based investment management firms. Catalyst brought an action against West Face for an alleged misuse of confidential Catalyst information regarding WIND Mobile Inc. that Catalyst claimed was obtained by West Face from the respondent, Mr. Moyse who had previously worked for Catalyst before joining West Face. Catalyst claimed that West Face had used that confidential information to successfully acquire an interest in WIND.

The trial judge dismissed all claims against West Face and Mr. Moyse and awarded costs to West Face on a substantial indemnity basis and costs to Mr. Moyse on a partial indemnity basis. Catalyst appealed from the dismissal of its claims and sought leave to appeal from the costs order.

The Court of Appeal dismissed Catalyst’s appeal from the bench with reasons to follow and reserved judgment on the costs-related appeals. The Court of Appeal went on to dismiss the application for leave to appeal the costs judgment.

38363

Government of Manitoba v. Ronald Edward Joyce, William Blaine Niemez and Jonathon Saunders  — and between —  Government of Manitoba v. Grand Beach Management Services Inc.  (Man.)

Torts — Nuisance — Crown law — Crown liability 

The province of Manitoba owns the land within Grand Beach Provincial Park. Since 1990, Manitoba has allowed Grand Beach Management Services Inc [“GBM”] to sell alcohol in their restaurant and patio — the Surf Club — located on park grounds. Manitoba retained the right to set the days and hours of operation of all business activities under the lease to GBM. Over the years there were complaints from near-by cottage owners about late-night noise, traffic, and dispersal issues at and after closing, including rowdyism, vandalism, and violence. Manitoba undertook various measures over the years to address the problems, including holding meetings with the cottage owners, mandating adjustments to the Surf Club’s hours of operation, and the provision of additional policing and security services at closing time. Finally, in 2003, GBM was advised that Surf Club’s hours of operation would have to cease at 11pm, consistent with the policy within all provincial parks of having quiet time between 11pm and 9am. GBM started an action in contract and tort in August 2006. In 2011, Manitoba filed a motion for summary judgment, which was granted, dismissing the claim on the basis that there was no genuine issue for trial. On appeal to the Manitoba Court of Appeal it was found that the motion judge made errors in his assessment of the case law and legal test. The appeal was granted and the matter returned for trial.