Supreme Court of Canada Bulletin: Applications for Leave to Appeal Dismissed

37746

Québec Service Employees Union, Local 298 (QFL) v. Vigi Santé ltée - and - Jean Barrette, in his capacity as grievance arbitrator (Que.)

Labour relations ‒ Grievance

The respondent, Vigi Santé ltée, is a non‑profit legal person that operates several private residential and long‑term care centres. In September 2013, a resident’s son installed a camera in her room so that he and his brother and sister could observe and hear their mother at all times from their cell phones and computers. That camera, which was installed with the respondent’s permission, was visible to anyone entering the resident’s room and was intended to ensure her well‑being. The images captured by the camera could not be recorded, although photographs could be taken of them. The respondent did not have access to the images from the camera. After the camera was installed, the respondent’s care attendants were advised of the presence of the camera, which was turned toward the resident’s bed and the place where she could sit. The camera made it possible to see the care provided to the resident and to identify the care attendants who were working. The applicant, the Québec Service Employees Union, Local 298 (QFL), which represents the care attendants employed by the respondent, filed a grievance against the installation of the camera. On April 14, 2014, the arbitrator, Jean Barrette, allowed the applicant’s grievance and ordered the respondent to remove the camera installed in the resident’s room. The respondent applied to the Superior Court for judicial review of that arbitration award. The Quebec Superior Court dismissed the motion for judicial review. The Court of Appeal allowed the appeal and dismissed the grievance.

37835

James Gregory Cameron v. Attorney General of Canada (on behalf of the United States of America) (B.C.)

Charter of Rights and Freedoms – Unreasonable delay – Extradition

The United States of America seeks to extradite Mr. Cameron to stand trial for alleged involvement in a cross-border drug trafficking conspiracy. Mr. Cameron requested that the Minister of Justice deny surrender because of delay in the extradition proceedings or because U.S. prison authorities will not be able to provide health care adequate for his needs. Alternatively, he asked the Minister to seek assurances related to his health care needs. The Minister ordered surrender without requesting assurances. The Court of Appeal dismissed an application for judicial review of the surrender order.

37895

A.M. v. Her Majesty the Queen (Man.)

Criminal law – Sentencing – Youths

A.M. fatally shot one victim and seriously injured another victim. A.M. pled guilty to second degree murder. At the time of the shooting, A.M. was 17 years and 4 months old. The Crown sought sentencing as an adult. A.M. sought the maximum youth sentence. The only issue before the sentencing judge was whether to apply the proposed adult sentence or the proposed youth sentence. The sentencing judge ordered the youth sentence. The Court of Appeal allowed an appeal and ordered the adult sentence.

37785

Victory Motors (Abbotsford) Ltd. v. Assessor of Area #15 - Fraser Valley (B.C.)

Municipal law – Taxation – Property assessments – Soil contamination

Victory Motors (Abbotsford) Ltd. owns a property which was at one time operated as a retail gas station, automobile dealership and automobile repair shop. The property was contaminated, fell into disrepair and there was no competitive market for it. The contamination spread to the neighbouring property, which led to a lawsuit. The former owner of Victory Motors listed the property for sale for $1.2 million but was unable to sell it. She eventually agreed to sell her shares in Victory Motors to the owner of the neighbouring property for $42,363.24. The new owner renovated the existing building on the property for use as commercial rental units without doing any environmental remediation work.

For 2013, the assessor assessed the property at its actual market value of $975,000. Victory Motors objected to the assessment, and the Property Assessment Review Panel reduced the amount to $500,000. Victory Motors appealed to the Property Assessment Appeal Board which confirmed the original assessment of $975,000.

37781

Idenix Pharmaceuticals, Inc. v. Gilead Pharmasset LLC, Gilead Sciences, Inc., Gilead Sciences Canada, Inc. (F.C.)

Intellectual property — Patents — Validity

The two patents at issue here claimed compounds that act against the virus family which includes Hepatitis C. The specific claimed compound is a modified nucleoside (a building block of ribonucleic and deoxyribonucleic acids). In 2002, Idenix filed two U.S. patent applications for certain nucleoside structures and their derivatives, including the claimed compound. As none of them had been synthesized, Idenix set out to synthesize some of them, including the claimed compound. Idenix’s U.S. patent applications established priority for Canadian Patent No. 2,049,191 (the “191 Patent”). Idenix filed a Patent Cooperation Treaty Patent Application for the Canadian patent in June 2003.

In May 2003, a chemist at Pharmasset, now Gilead, synthesized the claimed compound. His provisional U.S. patent application in 2004 was the foundation for Gilead’s Canadian Patent No. 2,527,657 (the “657 Patent”), filed in April 2004. It discloses the step-by-step synthesis of the claimed compound and its antiviral activity against Hepatitis C in some detail. The 657 Patent was issued in June 2011. In May 2013, Gilead filed a New Drug Submission for sofosbuvir, an oral treatment for Hepatitis C.

Gilead alleged that the 191 Patent was invalid due to insufficient disclosure, lack of demonstrated utility or sound prediction, and overbreadth. By counterclaim, Idenix sought a declaration that Gilead’s subsequent 657 Patent for infringement, lack of novelty, and wilful misleading. The trial judge found the 191 Patent to be invalid and dismissed Idenix’s counterclaim. The Court of Appeal dismissed Idenix’s appeal.

37821

Attorney General of Quebec v. Centrale des syndicats du Québec, Fédération des syndicats de l'enseignement (CSQ) - and - Comité patronal de négociation pour les commissions scolaires francophones (Que.)

Administrative law – Judicial review

During negotiations held between the fall of 2014 and June 2015, the members of the unions affiliated with the respondent labour organizations used certain pressure tactics. Those tactics led to the filing of requests seeking the intervention of the Commission des relations du travail (now the Administrative Labour Tribunal (“ALT”)) under ss. 111.16 to 111.18 of the Labour Code. In the context of those requests, the labour organizations stated that they intended to challenge the constitutionality of ss. 111.17 and 111.18 on the ground that they infringed the right to collective bargaining guaranteed by the constitutional charters. The issue was not decided, since the collective agreement negotiations ended in December 2015.

On March 21, 2016, the respondents served a motion for a declaratory judgment in which they sought to have ss. 108 and 111.16 to 111.18 of the Labour Codedeclared unconstitutional in light of the right to collective bargaining. The Attorney General of Quebec filed a motion to dismiss on the ground that the Superior Court lacked jurisdiction. She argued that the application was moot and that only the ALT had jurisdiction to make the requested order in the context of a dispute between the parties, since under its home statute, it had the power to decide any issue of law or fact necessary for the exercise of its jurisdiction. The Superior Court allowed the motion to dismiss and dismissed the motion for a declaratory judgment, but the Court of Appeal reversed the decision.

36721

Maria Lubecki v. William Lubecki (Que.)

Civil procedure – Rectification of judgments

On April 7, 2016, the Supreme Court of Canada dismissed William Lubecki’s application for leave to appeal from a decision of the Quebec Court of Appeal. Execution procedures were begun in the Superior Court by Maria Lubecki in October 2016. On February 20, 2017, Mr. Lubecki’s lawyers wrote to the judges of the Court of Appeal to see if they would rectify their judgment without the need for a formal motion. The lawyers explained that, though the reasons stated that a 50 000 $ damages award should not have been made in the circumstances, they did not specifically order that this conclusion be removed from the lower court judgment. In response, Ms. Lubecki requested that the Court of Appeal decline to hear the motion, explaining that the matter was already being considered by the Superior Court, in the course of the execution procedures. The Court of Appeal issued a rectified judgment, removing the 50 000 $ award from the Superior Court’s order. Ms. Lubecki seeks leave to appeal from that rectified judgment.

37842

Katherine Lin v. Eric Fleury, Gloria Ann (Ont.)

Civil procedure – Abuse of process

The applicant Ms. Lin commenced an action against the named respondents Eric Fleury and Gloria Ann who, she alleged, worked at the Employment Centre with the City of Toronto. She advanced claims of ongoing harassment and sought damages of $50,000 from Mr. Fleury and $300,000 from Ms. Ann. The City of Toronto, on behalf of the two named individuals, requested that the Ontario Superior Court of Justice dismiss the action as frivolous, vexatious and an abuse of process pursuant to r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Superior Court dismissed the action as frivolous, vexatious and an abuse of process. The Divisional Court quashed an appeal for want of jurisdiction and the Court of Appeal dismissed the motion for leave to appeal.

37881

Michael Kelly v. Her Majesty the Queen  (Ont.)

Criminal law – Evidence – Admissibility

Mr. Kelly’s common law spouse was murdered. Police officers suspected Mr. Kelly and commenced an undercover operation. Undercover officers led Mr. Kelly to believe that he was the beneficiary of insurance policies on the deceased’s life but he could not collect the insurance unless he freed himself of suspicion of the murder. They proposed acting as accomplices in an insurance scam. One officer posed as terminally ill and offered to confess to the murder in exchange for each officer receiving shares of the insurance proceeds. The officers asked Mr. Kelly to reveal information about the murder to enhance the confession. Mr. Kelly repeatedly denied culpability but ultimately confessed to the undercover officers. The trial judge ruled the confession admissible into evidence. A jury convicted Mr. Kelly of first degree murder. The Court of Appeal dismissed an appeal from the conviction.

37798

Essar Steel Algoma Inc. v. Jindal Steel, Power Limited and Steel Authority of India Ltd. (F.C.)

Commercial law – International trade

Essar Steel Algoma Inc. and two other steel mills filed a complaint with the President of the Canada Border Services Agency (“CBSA”), requesting a dumping and subsidy investigation into the importation of subject goods – hot-rolled carbon steel plate and high-strength low-alloy steel plates from the Russian Federation and the Republic of India. The President of the CBSA made a finding of dumping in respect of the subject goods from both Russia and India, and of subsidization in respect of the subject goods from India. The Canadian International Trade Tribunal conducted an inquiry pursuant to the Special Import Measures Act, R.S.C. 1985, c. S-15, and determined that the dumping and subsidization of the subject goods did not cause or threaten to cause injury to the domestic steel industry.  The Court of Appeal dismissed the application for judicial review.