APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Her Majesty the Queen v. Gerard Comeau (N.B.)
Constitutional law – Interpretation – Conflict of laws
In October 2012, Mr. Comeau was intercepted by the police in Campbellton, New Brunswick. He was returning from Pointe-à-la-Croix and the Listuguj First Nation Indian Reserve, in the province of Québec, where had purchased alcoholic beverages at a cheaper price than he would have paid had he purchased the alcohol in New Brunswick. Mr. Comeau was charged under section 134(b) of the New Brunswick Liquor Control Act, RSNB 1973, c. L-10 for exceeding the limit on beer and liquor that could be brought into New Brunswick from another province, and the alcoholic beverages were seized. In his defense, Mr. Comeau claimed that section 134(b) of the Liquor Control Act was an unenforceable provincial law, of no force and effect, as it contravened section 121 of the Constitution Act, 1867. The Court of Appeal denied the leave to appeal.
West Fraser Mills Ltd. v. Workers' Compensation Appeal Tribunal, Workers' Compensation Board of British Columbia (B.C.)
Administrative law – Judicial review – Standard of review
E, a tree faller, was fatally struck by a rotting tree while working within the area of a forest licence held by the applicant West Fraser Mills Ltd. West Fraser was the “owner” of the workplace, as defined in Part 3 of the Workers Compensation Act, R.S.B.C. 1996, c. 492. West Fraser was not E’s employer who worked for an independent contractor. The Workers’ Compensation Board investigated the accident and found that West Fraser had failed to ensure that all activities of the forestry operation were both planned and conducted in a manner consistent with the Regulation and with safe work practices acceptable to the Board pursuant to s. 26.2 of the Occupational Health and Safety Regulation, B.C. Reg. 296/97. The Board imposed on West Fraser an administrative penalty for the violation, pursuant to s. 196(1) of the Act.
West Fraser requested a review of the order. A review officer confirmed the Board’s penalty order and the finding of violation. On appeal to the Workers’ Compensation Appeal Tribunal, West Fraser argued that s. 26.2 of the Regulation is ultra vires, and that an administrative penalty can only be levied against a person who has, in the course of acting as an employer, committed a violation. The Appeal Tribunal dismissed West Fraser’s appeal.
Kevin Patrick Gubbins v. Her Majesty the Queen (Alta.)
Criminal law – Evidence – Disclosure – Criminal Code offences
The applicant, Mr. Gubbins, was detained on March 10, 2014. Samples of his breath were analysed, which showed two blood alcohol readings of 120 mg/%, and he was charged with driving “over 80”. The Crown provided the standard breathalyzer disclosure package, and Mr. Gubbins then demanded the maintenance records for the approved instrument since it was imported into Canada and first put into use. The Crown took the view that these records were not in the possession of the Crown, or even the police, but were actually held by the third party contractor that maintained the equipment. A voir dire was held, in which the Crown called expert evidence to demonstrate that the requested records were irrelevant to making full answer and defence. The trial judge concluded that she was bound by R. v Kilpatrick, 2013 ABQB 5, and that the records were subject to first party Stinchcombe disclosure. She entered a stay. The Crown’s appeal of the stay was dismissed. The Court of Appeal, however, allowed the Crown’s further appeal, lifted the stay and sent the matter for trial.
Darren John Chip Vallentgoed v. Her Majesty the Queen (Alta.)
Criminal law – Evidence – Disclosure
The applicant, Mr. Vallentgoed, was detained on May 11, 2013. Samples of his breath were analysed, and showed blood alcohol readings of 130 mg/% and 120 mg/%, and he was charged with driving “over 80”. The initial Crown disclosure did not include the maintenance records for the breathalyzer instrument. In addition to the standard disclosure package, Mr. Vallentgoed requested: (a) detailed records of maintenance and annual inspections for the instrument for the previous two years; (b) maintenance and annual inspection log for the past two years for the external simulator; and (c) records showing the cumulative uses of the alcohol standard for a one month period before the testing. The Crown voluntarily produced the maintenance log, which disclosed that, in addition to annual maintenance, the machine had been sent out for repair the day after Mr. Vallentgoed was charged, two months before that, and two months before that. The defence requested detailed reports of the work performed on those dates as there was no information in this regard in the maintenance log provided. The Crown took the position that the rest of the maintenance records were third party records, were irrelevant, and would not be voluntarily produced. The Crown called expert evidence on the relevance of the maintenance records. The trial judge followed the decision in R. v Black, 2011 ABCA 349, and found that since the additional records were not “the fruits of” Mr. Vallentgoed’s prosecution, and were not relevant, they were not subject to first party Stinchcombe disclosure. Mr. Vallentgoed was convicted. Mr. Vallentgoed’s summary conviction appeal was allowed, the matter remitted to the provincial court, the records requested by the defence ordered to be disclosed by the Crown, and a new trial ordered to take place after the disclosure is provided. The Court of Appeal, however, allowed the Crown’s appeal and restored Mr. Vallentgoed’s conviction.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Boiron Canada Inc. v. Adanna Charles (Que.)
Civil procedure – Class action – Criteria for authorizing class action
The respondent Adanna Charles is a Quebec consumer. In the winter of 2011, when she and her five‑year‑old son had flu symptoms, she purchased two homeopathic products marketed by the applicant Boiron Canada Inc., Oscillococcinum and Children’s Oscillococcinum. Those products had been approved by Health Canada and, according to their labelling, were homeopathic medicines for relieving the effects of the flu, such as fever, chills and body aches. The respondent alleged that, even though she had used the recommended dose of the product, there had been no noticeable effect on her ailments. As a result, she brought legal proceedings against Boiron Canada Inc. seeking authorization to institute a class action and asking to be ascribed the status of representative. The Quebec Superior Court dismissed the amended application for class action. The Court of Appeal dismissed the appeal.
Alexander S. Clark v. Maurizio Pezzente, Toronto Dominion Bank, TD Canada Trust, TD Investment Services Inc. and TD Waterhouse Canada Inc. (Alta.)
Civil procedure – Security for costs – Torts – Misrepresentation
In 2004, Mr. Clark transferred his retirement pension plan to TD Canada Trust. He met with the Respondent, Mr. Pezzente. Mr. Clark and his wife sold their house in Calgary and moved to Scotland. After he was settled there, on two occasions he called for money from his account, and the funds were transferred to him. Unfortunately, when he called for a third sum, TD Waterhouse decided, in error, that his investment was covered by Canadian federal legislation not provincial legislation. Provincial regulations allow funds to be withdrawn by a non-resident, but federal regulations do not. Mr. Clark and his wife ultimately moved back to Canada.
In 2006, Mr. Clark commenced an action against TD Waterhouse Canada Inc. (“first action”). The first action was heard in July 2012. In that trial, it was determined that the investment was regulated by provincial law and there was nothing wrong with TD Waterhouse Canada Inc. sending Mr. Clark the money in Scotland when he called for it. The error was in not sending the third request for funds. The trial judge concluded that Mr. Clark had not proven any damages as a result of TD Waterhouse Canada Inc.’s errors. The error was honest, inadvertent and not intentional. The trial judge did not award punitive or exemplary damages. Mr. Clark’s action was dismissed. Mr. Clark appealed to the Court of Appeal but the appeal was dismissed. He unsuccessfully sought leave to appeal to the Supreme Court of Canada.
In April 2015, Mr. Clark filed another action seeking the same relief as was sought in the first action. In November 2015, Mr. Clark’s motion for summary judgment was dismissed, but the Respondents’ application to strike Mr. Clark’s claim was granted. On appeal, it was concluded that the Master’s decision must be upheld and therefore the appeal was dismissed. Mr. Clark’s appeal to the Court of Appeal was struck as he failed to post security for costs as ordered.
Gui-Ying Wang, Shao Jun Wang v. Police officers from the Rouville station, Sûreté du Québec, Attorney General of Quebec (Que.)
Charter of Rights and Freedoms – Fundamental justice – Civil procedure
The applicants claimed damages from the Attorney General of Quebec and the police officers from the Rouville station of the Sûreté du Québec (“the respondents”) for police intervention that they said was abusive. They also alleged that the respondents had falsified their reports. In response to the applicants’ action, the respondents filed a motion to dismiss the originating pleading for abuse of procedure under art. 51 of the Code of Civil Procedure. The Quebec Superior Court allowed the application to dismissed the originating motion. The Court of Appeal dismissed the motion for leave to appeal.
Committee for Monetary and Economic Reform ('COMER'), William Krehm and Ann Emmett v. Her Majesty the Queen, Minister of Finance, Minister of National Revenue, Bank of Canada and Attorney General of Canada (FC)
Civil procedure – Pleadings – Standing – Declaratory judgments
The applicants commenced an action against the respondents. They sought declarations of violations of the Bank of Canada Act, R.C.S. 1985, c. B-2; the Constitution Act, 1867, (U.K), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5; ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; and of tortious conduct of conspiracy and misfeasance in public office. The applicants sought damages for the violations alleged.
The respondents brought a motion to strike. The Federal Court Prothonotary struck out the original statement of claim in its entirety without leave to amend on the basis that the claim did not disclose a reasonable cause of action. On appeal from the Prothonotary’s decision, the Federal Court judge agreed that the claim should be struck but granted leave to amend the pleadings. The Federal Court of Appeal dismissed the appeal and cross-appeal from that decision.
The applicants filed an amended statement of claim where they abandoned prior Charter claims and added a claim pursuant to s. 3 of the Charter, asserting a right to “no taxation without representation”. The respondents again moved to have the statement of claim struck on the basis that the applicants failed to rectify any of the previous deficiencies in the pleadings, and that the claim therefore disclosed no reasonable cause of action. The Federal Court of Appeal dismissed the appeal.
Paul Duncan Reilly v. Johnson and Junger Law Firm (Ont.)
Canadian Charter of Rights and Freedoms – Equality rights – Civil procedure
Mr. Reilly brought a claim against the lawyers who represented his former spouse in a family law proceeding. Mr. Reilly claimed their conduct caused delays, distress and hardship in the course of the proceedings.
The respondents brought a motion to have the Statement of Claim struck. The motion to strike was allowed. The appeal to the Court of Appeal was also dismissed.
Richard Ste-Marie v. Société de l’assurance automobile du Québec (Que.)
Charter of Rights and Freedoms – Fundamental justice – Civil procedure
The applicant had his driver’s licence suspended by the respondent Société de l’assurance automobile du Québec (“SAAQ”). He filed an originating motion claiming damages for breach of the contractual relationship and for the infringement of his fundamental rights. In response, the SAAQ filed a motion to dismiss the originating motion under art. 51 of Quebec’s Code of Civil Procedure. The Quebec Superior Court dismissed the originating motion. The Court of Appeal dismissed the motion for leave to appeal.
Lubov Volnyansky v. Regional Municipality of Peel (Ont.)
Social law – Social assistance – Overpayment
The Applicant, Lubov Volnyansky appealed a Social Benefits Tribunal decision that the matter of an overpayment to Ms. Volnyansky had finally been determined in earlier proceedings, which proceedings had not been successfully challenged. The Tribunal originally decided that Ms. Volnyansky had received an overpayment in three decisions: December 9, 2008, April 7, 2009 and August 13, 2009. Ms. Volnyansky sued in Superior Court for an order or an attempt to overturn or set aside the decisions. She was unsuccessful. She then also unsuccessfully sought to judicially review the decisions. The Tribunal concluded that the matter of the overpayment had been finally determined. Accordingly, the appeals were dismissed. Subsequently, the Court of Appeal dismissed Ms. Volnyansky’s motion for leave to appeal.
Treyvonne Anthony Warner Willis v. Her Majesty the Queen (Man.)
Charter of Rights – Criminal law – Constitutional law
The applicant faced death threats over a drug debt. The dealers threatening him also wanted Ms. Tran killed for an unrelated reason. In order to avoid the threat, the applicant chose to commit the murder of Ms. Tran. The applicant explained to the police that it was “necessary at the time”, because “[i]t was like my life or her life.” The applicant confessed to his crime. At his trial by judge and jury for first degree murder, the applicant sought to put forward the defence of duress based on his claim that this was a situation of kill or be killed. The applicant brought a pre-trial application asserting that s. 17 of the Criminal Code, R.S.C., 1985, c. C-46 violated s. 7 of the Charter of Rights. Both the trial court and the Court of Appeal upheld the validity of s. 17 of the Code. The trial proceeded on the basis that the applicant could not rely on the defence of duress. The applicant was convicted of first degree murder and was sentenced to life imprisonment without eligibility for parole for 25 years. The appeal was dismissed.
Corporation of the City of Thunder Bay v. Poplar Point First Nation Development Corporation (Ont.)
Courts – Jurisdiction – Equity – Relief
The respondent Poplar Point First Nation Development Corporation, a not-for-profit corporation supporting Poplar Point First Nation Band and its members, was in municipal tax arrears with respect to one of its properties located in the City of Thunder Bay. The City took the necessary steps under the Municipal Act, 2001, S.O. 2001, c. 25, to sell the taxpayer’s land to recover the tax arrears, including registration of a tax arrears certificate against title, and sending a notice of registration of the certificate and then a final notice to the Development Corporation. The Development Corporation did not respond, and the City sold the property in a municipal tax sale. After recovering $5,843.11 in tax arrears and additional related costs, the City paid into court the surplus (an amount exceeding $76,000).
Pursuant to s. 380(4) of the Act, the Development Corporation had one year from the date of payment of the surplus into court to bring an application for payment out of court. Otherwise, s. 380(6) deems the monies to be forfeited to the City. The Development Corporation applied to the court three weeks after the one-year deadline, seeking relief from forfeiture. The City brought a counter-application, seeking payment out of court of the monies. The Court of Appeal allowed the appeal.
City of Hamilton v. Dean Saumur, an infant under the age of 18 years by his Litigation Guardian, Janet Saumur, and the said Janet Saumur (Ont.)
Torts – Negligence – Contributory negligence – Motor vehicle accidents
Dean Saumur was badly injured when struck by a car while crossing a busy street in Hamilton on his way to school on May 14, 2002. He was almost 10 years old at the time. The driver of the car settled the action with the plaintiffs and the City of Hamilton without admitting liability. The plaintiffs, Dean Saumur and his mother, then claimed from the City for negligence. As the parties had agreed upon the quantum of damages, the trial judge was only required to decide issues of liability and apportionment. That determination focussed on what time the accident occurred (i.e., whether it occurred during the period of time when the crossing guard employed by the City of Hamilton was supposed to have been present) and whether Dean should be found to be contributorily negligent.
The trial judge apportioned liability in negligence equally between the driver of the vehicle and the City of Hamilton. The trial judge held that contributory negligence by the respondent, Dean Saumur, was not proven on a preponderance of the evidence. The Ontario Court of Appeal dismissed the City of Hamilton’s appeal on the basis that the trial judge had not made any reviewable errors; in particular, it held that the trial judge applied the correct legal standard of care, namely the standard of a reasonably prudent 10-year old of like intelligence and experience, in concluding that no contributory negligence should be attributed to Dean Saumur.
Wildlands League, Federation of Ontario Naturalists v. Lieutenant Governor in Council, Minister of Natural Resources (Ont.)
Administrative law – Judicial review – Standard of review
The Divisional Court of Ontario dismissed the environmental groups’ application for judicial review, finding that the statutory conditions precedent of the Act had been met in this case, and that the Minister had properly discharged his duty. Furthermore, the Act accomplishes the goal of protecting species at risk while also accounting for other social, economic and cultural considerations; this suggests a balance between competing interests, and suggests that harm to certain species may be acceptable in light of certain social or economic benefits. As such, the Regulation was not inconsistent with the stated purpose of the Act.
The Court of Appeal dismissed the environmental groups’ appeal, finding no error in the analysis or conclusions of the Divisional Court. The Minister in this case properly considered the effect of the Regulation on each affected species at risk, and thus complied with the necessary statutory condition precedent. In addition, the proper approach to assessing a regulation’s consistency with its enabling statute’s legislative purpose necessarily involves an examination of the broader legislative scheme, and a consideration of the statute’s policy and objects when considered as a whole. In this case, the fundamental purpose of the Act was to protect species at risk; however, the Act promotes this object through a scheme that necessarily has regard to human activities with economic, social and cultural elements. As such, the Regulation’s partial focus on social and economic concerns is not inconsistent with the purposes, objects and scheme of the Act.