APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
William Glen Parrett v. Dianne Frances Parrett (B.C.)
Family law – Support – Spousal support
The parties married in 1971. During the marriage, William Parrett was appointed to the Supreme Court of British Columbia and became entitled to a retirement annuity under the Judges Act, R.S.C. 1985, c. J-1. The parties separated on February 28, 2000. William Parrett consented to an order for spousal support. On March 8, 2010, $136,655 was distributed into Dianne’s RRSP representing 50% of the portion of the retirement annuity accrued during the marriage. William retired on May 31, 2015 and applied to cancel spousal support. The Supreme Court of British Columbia granted the motion to terminate spousal support. The Court of Appeal allowed the appeal and order to pay spousal support issued.
Her Majesty the Queen v. Sheldon Bertrum Worme (Alta.)
Criminal Law – Evidence – Mr. Big operation
Mr. Worme was convicted by a jury of first degree murder for participating in a killing during a home robbery. Evidence obtained in a Mr. Big operation was essential to the Crown’s case. Mr. Worme first told undercover officers that he was only a bystander but later confessed to Mr. Big that he was a full participant. At trial, he recanted this confession and maintained that his original account of being a mere bystander was truthful. At trial, some of the undercover officers testified. The Crown led testimony that Mr. Big operations are intended to seek the truth. When cross-examining one of these officers, defence counsel asked if, in his personal experience, false confessions had been given to him as Mr. Big. He replied in the negative. Crown counsel objected. The trial judge ruled the questioning irrelevant and instructed the jury that what happens or may happen in other cases is not relevant. The Court of Appeal held in part that the trial judge erred by prohibiting defence counsel’s intended cross-examination.
Peter Guenter v. Her Majesty the Queen (Ont.)
Charter of Rights – Criminal law – Arbitrary detention
Following a motor vehicle accident, Cst. Campoli arrested the applicant for impaired driving at 7:36 p.m., and read him the right to counsel and caution at 7:51 p.m. She did not read him a breath sample demand until 8:36 p.m. The applicant then spoke with his lawyer until 9:04 p.m. Cst. Campoli informed the breath technician, Cst. Casey, of her grounds for arresting the applicant, specifically: the applicant had been involved in a traffic accident; she observed the odour of alcohol on his breath; she observed he was unsteady on his feet, his speech was slurred, and he was unable to keep his head up. Cst. Casey testified that those were sufficient grounds for him to proceed with the testing procedure. Cst. Campoli then turned the applicant over to Cst. Casey for testing. Cst. Casey made his demand immediately following his formation of reasonable grounds to do so. Cst. Casey read the applicant his rights to counsel, caution to a charged person, secondary caution to a charged person, and the breathalyzer test demand. Cst. Casey administered two breath tests. The first sample recorded an alcohol/blood reading of 172 mg/100 ml; the second, 170 mg/100 ml. The applicant was convicted of three counts of impaired driving causing bodily harm and was sentenced to five years imprisonment. The Court of Appeal dismissed the appeal.
Mario Charlebois v. Town of Riverview
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Attorney General of New Brunswick
Civil procedure – Appeals
Some interlocutory decisions were rendered orally by the trial judge who had to decide an application for an order requiring the applicant Mr. Charlebois to cease certain property development work. The Court of Appeal struck out the notices of appeal from the interlocutory decisions filed by Mr. Charlebois on the ground that he had not obtained leave to appeal from the Court in accordance with Rule 62.03 of the Rules of Court.
Al Boom Wooden Pallets Factory v. Jazz Forest Products (2004) LTD. (B.C.) (Civil) (By Leave)
Contracts – Damages – Income loss
The Applicant, Al Boom Wooden Pallets Factory agreed to purchase from the Respondent, Jazz Forest Products a volume of finished lumber to be shipped from British Columbia to Al Boom’s plant in Kuwait. Upon arrival of the lumber, a dispute arose regarding the volume of wood specified in the contract. Al Boom’s position was that the volume was to be calculated on a “net count” basis by multiplying the finished thickness, by the finished width, by the length. Jazz Forest’s position was that the volume was to be calculated on a “nominal count” basis by multiplying the thickness of the lumber before finishing, by the width before finishing, by the length. The trial judge found the contract to be ambiguous, and then looked to the surrounding circumstances to find the contract was on a “net count”. Al Boom was awarded damages of $415,000US for the lost opportunity to utilize the missing volume of lumber and $1,317,000US for harmed business relationships with customers. The Court of Appeal allowed the appeal in part. The trial judge did not err in awarding damages of $415,000US for the lost opportunity to utilize the missing volume of lumber. However, the losses associated with past and future harmed business relationships with customers are too remote and are based on speculation regarding Jazz Forest’s knowledge at the time of the contract. The award of $1,317,000US was therefore quashed.
Melissa Merritt, Christopher Fattore v. Her Majesty the Queen (Ont.)
Charter of Rights and Freedoms – Search and seizure – Procedural law
In 2014, the applicants were arrested and charged with two counts each of first-degree murder. Christopher Fattore also was charged with one count of second-degree murder. Police seized their family computer and locked down their Gmail accounts. In 2016, police obtained an ex parte general warrant allowing them to search a Gmail account with intent to link some emails in the account with allegedly incriminating internet searches in order to establish that one or both of the applicants conducted the searches. The police suspended their search of the Gmail account when they realized that it contains solicitor-client privileged emails. Defence counsel took a position that the emails in the Gmail account cannot be used to link any internet searches to either accused. Ms. Merritt brought a motion seeking in part to quash the general warrant. The Ontario Superior Court of Justice dismissed the motion.
David Adrian McCallum v. Her Majesty the Queen (Sask.)
Criminal law – Constitutional law – Sentencing
The applicant attacked an inmate who was lying on a couch in the common room. He stabbed the inmate two times in his left cheek with a pencil and also threatened to kill him. The applicant was convicted of assault with a weapon and uttering a threat. Prior to sentencing, the Crown applied under Part XXIV, s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46 to have the applicant remanded for assessment for the purposes of a dangerous offender application. The Crown’s application was granted and a psychological assessment report was completed by Dr. Roger Holden. With the Attorney General’s consent the Crown proceeded to a dangerous offender hearing and applied under s. 753 of the Criminal Code to have the applicant declared a dangerous offender. The applicant was declared a dangerous offender and was given an indeterminate sentence of imprisonment. The applicant’s appeals with respect to his conviction, dangerous offender designation and sentence were all dismissed by the Court of Appeal.
Robert Lavigne v. Canadian Human Rights Commission (FC)
Charter of Rights – Right to life, liberty and security of person
In 2008, Mr. Lavigne entered into minutes of settlement with third parties against whom he had filed several complaints under the Canadian Human Rights Act, R.S.C. 1965, c. H-6. Those complaints were mediated by the Canadian Human Rights Tribunal and the minutes of settlement were signed. Mr. Lavigne brought an action against the Canadian Human Rights Commission (“CHRC”), claiming that it had a legal duty to disclose to him its authority to approve the settlements, which he alleged were null and void. Mr. Lavigne sought a declaration from the Federal Court of Appeal that his s. 7 Charter rights had been violated by the CHRC. The Federal Court had already dismissed his action and had declared him a vexatious litigant. His appeal from that decision was dismissed as was his application for leave to appeal. Mr. Lavigne brought a second appeal from the decision of Martineau J.
Josephakis Charalambous v. Attorney General of Canada (FC)
Administrative law – Judicial review
The applicant, formerly a practicing family physician, is serving a life sentence for first degree murder of a young patient. The victim and her sister complained to the College of Physicians and Surgeons of British Columbia that he had engaged in sexual misconduct towards them. The victim was scheduled to testify at a College disciplinary hearing. However, she was murdered before her scheduled testimony. In 1994, the applicant was convicted of first degree murder. The trial judge found that the applicant had arranged a contract killing via an acquaintance to prevent the victim and her sister from testifying before the College.
While the applicant’s murder conviction was not of a sexual nature, in administering his sentence, the Correctional Service made a number of decisions based on the fact that he was considered to be a “sexual offender”. The Correctional Service relied on: the applicant’s past involvement with another patient, which began when she was 15 years old and led to a disciplinary sanction by the College; charges of sexual assault, mostly involving former patients, all of which were stayed after his murder conviction; and a psychological assessment prepared at the time he entered custody characterizing the applicant as a “prototypical sexual offender”.
In 2011, the applicant requested that all references in his file to sexually inappropriate behaviour, sexual component of index offence or untreated sex offender or sex offender be corrected. He also challenged a prior refusal of his request for a transfer to a minimum security institution. The applicant’s grievance was denied at three levels. The Federal Court dismissed the Application for judicial review. The Federal Court of Appeal dismissed the appeal.
Ontario Electricity Financial Corporation v. Iroquois Falls Power Corporation
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Ontario Electricity Financial Corporation v. Cochrane Power Corporation
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Ontario Electricity Financial Corporation v. N-R- Power and Energy Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership
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Ontario Electricity Financial Corporation v. Kirkland Lake Power Corporation
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Ontario Electricity Financial Corporation v. Lake Superior Power Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership and Algonquin Power (Nagamami) Limited Partnership
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Ontario Electricity Financial Corporation v. Cardinal Power of Canada, L.P., MPT Hydro L.P.
Contracts – Commercial contracts – Interpretation – Implied term
This application arises out of six cases concerning six long-term contracts for the purchase of electricity generated by the respondent power corporations and distributed by the Ontario Electricity Financial Corporation (“OEFC”) to customers in Ontario. In the late 1980s, Ontario Hydro looked to the private sector to assist in the construction of new power generation facilities needed to service Ontario’s increasing power demands. The respondent power corporations, among others, agreed to build power generation facilities and entered into contracts with lengthy terms. The power corporations alleged that unilateral changes made to the calculation of their payments between the late 1990s and 2010, were inconsistent with the terms of the contracts and resulted in significantly lower payments to the power corporations.
The application judge declared that the power corporations were entitled to a declaration that the new calculations did not comply with those agreements from January 1, 2011, onward. The power producers were entitled to an order requiring the OEFC to recalculate payments made from January 1, 2011, onward as they had been calculated prior to that date. OEFC was also to pay the power producers an amount sufficient to compensate them for the difference between the amount they would have been paid using the earlier calculation and the amount they were paid using the improper calculation, plus interest. The Court of Appeal dismissed the appeals and dismissed the cross-appeals as moot.
Lloyd Ceymour Johnson v. Her Majesty the Queen (Ont.)
Criminal law – Evidence – Unsavoury witness
The victim, Salheldin Ali, let his ex-girlfriend, Nadia Ayyad, into his apartment to pick up her remaining belongings. Shortly thereafter, there was a knock on the door. Mr. Ali opened the door to find Ms. Ayyad and two masked men standing in the doorway, one with a gun and the other with a knife. One of the men shot Mr. Ali in the chest. Ms. Ayyad and the two men then ran to a car that they had parked nearby. After a trial by judge alone, the applicant was convicted of nine offences, including attempted murder. The applicant was sentenced to 14 years imprisonment for the attempted murder, with concurrent sentences on the remaining charges. The conviction and sentence appeals were dismissed.
Dwayne Kevin George v. Her Majesty the Queen (Ont.)
Criminal law – Alibi – Curative proviso
Mr. George broke into the complainant’s apartment and assaulted her in the early morning hours of Friday, August 3, 2007. He remained in the apartment that weekend and was arrested there on Sunday, August 5. The trial judge admitted similar fact evidence that in 2000, Mr. George was convicted of violent offences committed against the same complainant. While incarcerated awaiting trial, Mr. George wrote to another inmate urging him to kidnap and torture the complainant. A defence witness testified that he was elsewhere with Mr. George from 11 pm Friday night to 5 am Saturday morning. The Court of Appeal for Ontario dismissed the appeals from convictions and sentence.
Paul Waldner, William Waldner, Springhill Lumber Wholesale Ltd., Black Forest Holdings Ltd., Prairie Post Frame Construction Ltd., Walcan Holdings Ltd., Canamatic Ventures Ltd. and Can-American Corrugating Co. Ltd. v. Ante Matic, Matic Holdings Inc. (Man.)
Contracts – Formation of contract – Breach of contract
Several actions arose from the disintegration of the business relationship between Paul Waldner and Ante Matic following the purchase of Springhill Lumber Wholesale Ltd., a building materials company. The main claim at trial was that there was a binding oral contract between Mr. Matic and Mr. Waldner, for which damages were sought for breach of contract and oppressive conduct. Damages were also sought for the wrongful dismissal of Mr. Matic, as well as damages for breach of fiduciary duty by Mr. Waldner in respect of Mr. Matic’s operation of a competing business. Springhill and Black Forest Holdings Ltd. counterclaimed that Mr. Matic breached his fiduciary duty as a director and officer of Springhill. Can-American Corrugating Co. Ltd. claimed against Mr. Matic for payment of building materials delivered by it to Mr. Matic’s house which Mr. Matic asserted were a gift.
The trial judge dismissed the shareholder and fiduciary claims and counterclaims, allowed the Springhill action and dismissed the wrongful dismissal counterclaim; and, allowed the Can-American action for payment of materials. The Manitoba Court of Appeal unanimously allowed the respondents’ (defendants’) appeal in part, and also allowed the applicants’ (plaintiffs’) cross-appeal.
Julie Daly v. Donald Smith (Ont.)
Leases – Residential tenancies – Landlord and Tenant Board
The applicant, Ms. Daly, brought an application before the Landlord and Tenant Board. She alleged that her landlord, the respondent Donald Smith, had sexually harassed her and had entered her apartment without her consent. The Board found that Mr. Smith had sexually harassed Ms. Daly on one occasion and had entered her apartment twice without her consent. Ms. Daly was awarded a rent reduction. She appealed that decision, seeking a larger award. The Divisional Court dismissed her appeal on the basis that the Board’s decision was reasonable. The Court of Appeal denied leave.
1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd., Maria Jeck and Ralph Jeck (B.C.)
Commercial law – Corporations – Oppression
1043325 Ontario Ltd. (“Skene Co.”) was one of two shareholders of a private company, CSA Building Sciences Western Ltd. (“CSA”), an engineering consulting company. Skene Co. was the minority shareholder, and Mr. Jeck was the majority shareholder of CSA. Mr. Jeck was at all material times the sole director of CSA.
Mr. Skene, the principal of Skene Co., began receiving allegations about Mr. Jeck’s conduct as majority shareholder and director of CSA. Skene Co. commenced an action against the respondents, seeking primarily oppression remedies under s. 227 of the Business Corporations Act, S.B.C. 2002, c. 57. Skene Co. alleged that Mr. Jeck misled Mr. Skene and failed to provide Skene Co. with information on CSA’s financial condition, forged the signature of Mr. Skene on behalf of Skene Co. on various corporate documents, forged Mr. Skene’s signature to engineering reports of CSA and applied his stamp thereto, without his permission, caused CSA to pay himself excessive management fees, and made certain transactions in breach of his fiduciary duties to CSA. The Supreme Court of British Columbia allowed the action in part. The Court of Appeal for British Columbia allowed the appeal in part.
Teva Canada Limited v. Pfizer Canada Inc. (FC)
Intellectual property – Patents – Medicines
The respondent, Pfizer Canada Inc. (“Pfizer”) is the corporate successor to the original patentee and innovative manufacturer of venlafaxine hydrochloride, a drug marketed under the name Effexor XR. The Canadian Patent 1,248,540 related to it was set to expire on January 10, 2006. In 2005, Ratiopharm, the corporate predecessor to the applicant, Teva Canada Limited (“Teva”), wanted to market its generic version of venlafaxine hydrochloride and filed an abbreviated new drug submission. Health Canada informed Ratiopharm that it would not issue a notice of compliance until the requirements under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 were met. On the eve of the expiry of the ’540 Patent, Canadian Patent 2,199,778, covering the extended release formulation of venlafaxine was issued and Pfizer listed it on the Patent Register against Effexor XR. On the same day, Ratiopharm (Teva) served a notice of allegation, accepting that its notice of compliance would not issue until after the expiry of the ’540 Patent but alleging that the newly-listed ’778 Patent was invalid or would not be infringed by its generic version of venlafaxine. Pfizer applied for an order of prohibition preventing the Minister from issuing a notice of compliance to Ratiopharm (Teva), and triggering the automatic twenty-four month stay. Ratiopharm (Teva) filed a motion to dismiss Pfizer’s prohibition application, submitting that the ’778 Patent was not eligible for listing on the Patent Register. That motion was granted and Pfizer’s prohibition application was dismissed. On August 2, 2007, the Minister granted Ratiopharm (Teva) a notice of compliance for its generic version of venlafaxine. Teva then commenced an action for damages under s. 8 of the Regulations for having been improperly kept off the market during the period of the statutory stay. The Federal Court of Appeal allowed Pfizer’s appeal.
BP, PLC v. Peter Kaynes (Ont.)
Private international law – Forum non conveniens – Civil procedure
In 2014, the Ontario Court of Appeal stayed Mr. Kaynes’ class action against the applicant, BP, for secondary market misrepresentation on the basis of forum non conveniens. Mr. Kaynes’ application for leave to appeal that decision was dismissed by this Court on March 26, 2015. When Mr. Kaynes’ attempt to pursue the class action in the U.S. District Court failed, he returned to the Court of Appeal for Ontario and asked that the stay be lifted. The court lifted the stay. In its view, the change in circumstances since its initial decision to stay the proceedings – the fact that the action was barred from proceeding in the U.S. and the fact that BP now admitted that the claim was governed by Ontario law – was sufficient to warrant lifting the stay. BP seeks leave to appeal that decision. It also seeks direction from the Court on whether it needs an extension of time to seek leave from the 2014 decision in order to be able to refer to it in its application for leave to appeal the 2016 decision.
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