39432 Independent Contractors and Business Association, et al. v. Ministry of Transportation and Infrastructure, et al. BC Courts — Jurisdiction — Administrative law — Judicial review

The Council of Canadians with Disabilities commenced an action with two individual co‑plaintiffs. The action raises claims that mental health legislation in British Columbia that allows non‑consensual psychiatric health care treatment infringes ss. 7 and 15 of the Charter of Rights and Freedoms and is unconstitutional. The individual co‑plaintiffs discontinued their claims. The Council of Canadians with Disabilities seeks to continue the litigation without the co‑plaintiffs. The Attorney General of British Columbia applied for summary judgment dismissing the action, arguing the test for public interest standing is not made out. Hinkson C.J. granted the motion and dismissed the action. The Court of Appeal allowed an appeal, struck Hinkson C.J.’s order dismissing the action, and remitted the matter of public interest standing to the British Columbia Supreme Court for reconsideration.

Mr. Edwards was the driver of a vehicle that struck and killed a pedestrian. Mr. Edwards had been looking in his rear view mirror when he heard a very loud bang and the passenger side of the windshield shattered. He stopped his vehicle to quickly inspect the extent of the damage and then proceeded on his way. Mr. Edwards testified he had not seen the pedestrian at any point, and he believed he had struck a deer. Mr. Edwards was convicted of having the control of the vehicle involved in the collision and, knowing bodily harm had been caused and being reckless with respect to whether death resulted, failing to stop his vehicle and give his name and offer assistance, with intent to escape civil liability. His conviction appeal was dismissed.

Subsection 97(2) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), permits a taxpayer to transfer assets to a partnership in return for a partnership interest without triggering the immediate tax result that such a transfer would normally entail. This is not a tax‑avoidance mechanism, but rather, a tax-deferral one: potential tax is preserved within the partnership until the assets are disposed of. The applicant, Iberville Developments Limited, was a special partner of a realty development limited partnership who utilized this tax-deferral mechanism. Iberville rolled in shopping centres worth $130M with a cost base of $14M and received non‑share consideration or boot of $8.5M. When it later carried out an internal reorganization that resulted in the partnership assets being owned by an affiliated corporation, Iberville claimed a realized capital loss of $122M. The Minister of National Revenue reassessed the transaction as a realization by the taxpayer of a $140K capital gain. The issue to be decided by the courts below was whether, upon a rollover of property to a limited partnership, the transferor’s adjusted cost base (“ACB”) in its partnership interest received in return is equal to both the fair market value of the property transferred pursuant to section 54 of the Act and the elected amount pursuant to subsection 97(2), or only to the elected amount. Iberville had argued that there is a moment in time upon the disposition, that is not at least immediately after the disposition or acquisition, at which point the cost of transferred property could be added under section 54 to the transferor’s ACB of its partnership interest. The Tax Court held that a contextual reading of the relevant provision did not allow for both section 54 and subsection 97(2) to apply at once. It found that such an interpretation leads to an absurd and unintended result. The Federal Court of Appeal agreed with much of the Tax Court’s analysis, and dismissed Iberville’s appeal. The court found that the relevant provisions could be read in a manner that avoids an absurd result, most notably because the partnership was in existence when the properties were transferred to it.


Media5 Corporation, Essagal Acquisitions Inc., 9271-9378 Québec Inc., 9271-8345 Québec Inc., Sound Investments Inc., Investissements Safran, Daniel Rochefort, Jean Crépeau, César Cesaratto and EZ Bay Holdings, v. Laurentian Bank of Canada and PriceWaterhouseCoopers Inc.

Insolvency Institute of Canada(Que.)

Courts - Courts of appeal

The applicant Média5 Corporation operated a business in the field of telecommunications technologies, and the applicant Essagal Acquisitions (Essagal) was a holding company held and controlled by Média5 whose purpose was to make international acquisitions. The respondent Laurentian Bank of Canada (LBC) had been a creditor of Média5 and Essagal since March 2017. Média5 had a combined loan balance of approximately $2,700,000 in capital, interest and costs, while Essagal had a term loan balance of approximately $6,000,000 in capital, interest and costs that was guaranteed by Média5. The term loan had been obtained for the purpose of acquiring two companies specializing in information technologies and network infrastructure projects that were located in the Persian Gulf region. All of the applicants’ loans with LBC were secured by various guarantees and hypothecs. After defaulting on a number of payments, the applicants participated in various discussions and entered into forbearance agreements with LBC between the fall of 2017 and the fall of 2019. In November 2019, LBC, deeming that the applicants were insolvent, applied in the Superior Court for the appointment of PriceWaterhouseCoopers Inc. as receiver under s. 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, for the purpose of selling the applicants’ businesses as going concerns in a bidding process. In response to a variety of questions raised by the Superior Court regarding the possibility for a secured creditor of having a receiver appointed under s. 243 of the BIA, the LBC amended its application so as to have an interim receiver appointed under s. 47 of the BIA. The amended application was dismissed by the Superior Court. The Court of Appeal dismissed the appeal in part and referred the matter back to the Superior Court to have another judge rule on the application for appointment of a receiver under s. 243(1) of the BIA.

In 2004, the applicant, Mr. Carmichael, killed his son. At the time, he was suffering from mental illness and psychotic delusions. He was also taking the antidepressant drug Paxil manufactured by the respondent, GlaxoSmithKline Inc. (“GSK”). The applicant was charged with murder but found not criminally responsible on account of mental disorder. He received an absolute discharge in 2009. In 2011, the applicant began an action in the Ontario Superior Court of Justice suing GSK for damages. The action was commenced more than seven years after the death of the applicant’s son and almost two years after he received an absolute discharge. GSK moved for summary judgment to dismiss the action as statute‑barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Act”). The motion judge dismissed the motion, holding that that the basic two-year limitation period under s. 4 did not begin to run until the applicant received an absolute discharge. In his view, the applicant had proved that he was incapable of commencing a proceeding in respect of the claim because of his psychological condition under s. 7(1)(a) of the Act, and had thus rebutted the presumption of capacity under s. 7(2).

The Ontario Court of Appeal allowed GSK’s appeal, granted the motion for summary judgment and dismissed the action as statute-barred. The Court of Appeal made five conclusions: (1) the motion judge did not apply the wrong legal test under s. 7(1)(a) of the Act; (2) the motion judge did not reverse the onus for proving capacity under s. 7(2); (3) the motion judge materially misapprehended evidence of incapacity and this led him to make a palpable and overriding error in applying s. 7(1)(a) to the evidence; (4) this was an appropriate case for the court to make a fresh assessment of the evidence and to substitute the decision that should have been made; and (5) the applicant did not prove that he was incapable of commencing his action against GSK until his absolute discharge because of his psychological condition.

The respondent Ville de Granby (“Granby”) served the applicant Mr. Lubecki with a notice of expropriation of land. Granby assessed the value of the land at $ 118 000, while Mr. Lubecki demanded $ 661 000 in real estate indemnity. Given the parties disagreement, the immoveable property division of the Administrative Tribunal of Québec (“ATQ”) rendered a decision evaluating the indemnity to be paid to Mr. Lubecki for the expropriation to $ 390 410. Mr. Lubecki sought a review of that decision by another panel of the ATQ, and the amount was increased by a second panel to $ 455 183. Mr. Lubecki sought leave to appeal of the second ATQ decision in the Court of Quebec. The Court of Quebec denied leave, holding that the application did not meet the criteria of raising issues that are serious, controversial, new or of general interest, and that there was no substantive error in the method of calculating the indemnity. The Superior Court granted Granby’s exception to dismiss Mr. Lubecki’s application for judicial review on the basis that it was unfounded in law even assuming that the facts alleged were true, and dismissed the application for judicial review. The court found that Mr. Lubecki failed to demonstrate in what way the decision of the Court of Quebec could be considered unreasonable, and that it was therefore plain and obvious that his judicial review had no chance of success. The Court of Appeal dismissed Mr. Lubecki’s application for leave to appeal, holding that the conclusions of the Superior Court and Court of Quebec were sound.

The applicant, Les Agences Robert Janvier Ltée (“ARJ”), responded to a public call for tenders made by the respondent, the Société québécoise des infrastructures (“SQI”), for the supply and installation of doors, frames and hardware for the construction of a new detention centre. Its bid was ranked second. In ARJ’s opinion, the winning lowest bid did not meet all the requirements of the call for tenders, including the holding of a licence issued by the Bureau de la sécurité privée (“BSP”) in the “locksmith agency” class, and was therefore ineligible. The SQI consulted the BSP and asked whether in fact that licence was required to perform the work. The BSP reviewed the specifications and found that a locksmith agency licence was not necessary here. Based on that response, the SQI awarded the contract to the company that had submitted the lowest bid. ARJ filed an originating application against the SQI, claiming the damages it had allegedly suffered as a result of the contract being awarded improperly to a competitor. The Quebec Superior Court ordered the SQI to pay ARJ $1,137,662 in compensation. The SQI appealed that judgment. The Quebec Court of Appeal allowed the appeal, set aside the trial judgment and dismissed the originating application.

The parties are registered owners as tenants in common of a property. The applicant, Ms. Este, resided in the residence on the property until 2015, when a fire caused such extensive damage to the residence that it must be demolished. Ms. Este wished to rebuild the residence using insurance proceeds but Ms. Esteghamat‑Ardakani preferred that her pre-existing application for partition and sale of the property proceed without rebuilding the residence. On application by Ms. Este, the chambers judge issued a mandatory interlocutory injunction compelling Ms. Esteghamat‑Ardakani to cooperate in the demolition and rebuilding of a residence on the property. The Court of Appeal allowed Ms. Esteghamat‑Ardakani’s appeal and set aside the order. It did so for several reasons, including that the order for cooperation was impermissibly vague and unenforceable.

Courts — Powers of the Court of Appeal

Mr. Auciello sued the respondents for damages in the amount of $100,000 for breach of contract, bad faith, intentional and unlawful interference with economic relations, breach of duty of good faith, irreparable harm to business reputation, loss of business and loss of business opportunity; $50,000 for mental and emotional distress; and $25,000 for aggravated and punitive damages against each respondent. Brown J. awarded partial indemnity costs in the respective amounts of $23,420.82 and $24,743.22 to the responding parties. Mr. Auciello’s application for leave to appeal was denied by the Court of Appeal.


Independent Jewish Voices, Amnesty International Canada, Centre for Free Expression, Professor Michael Lynk (UN Special Rapporteur for the Situation of Human Rights in the Palestinian Territory Occupied since 1967), Arab Canadian Lawyers Association, Transnational Law and Justice Network, Canadian Lawyers for International Human Rights, Al-Haq v. Attorney General of Canada, David Kattenburg and Psagot Winery Ltd.(F.C.)

Civil procedure — Intervention

An appeal was brought to the Federal Court of Appeal from a judicial review in the Federal Court. The appeal is pending in the Federal Court of Appeal and turns on how the Canadian Food Inspection Agency applied domestic labelling requirements in legislation to specific imported food products, namely wine.

The Federal Court of Appeal received multiple motions for leave to intervene under Rule 109 of the Federal Courts’ Rules. The Federal Court of Appeal dismissed the applications for leave to intervene.

In 2019, the Ontario Superior Court of Justice denied J.A.’s application for judicial interim release (“bail”). The Court of Appeal also denied J.A.’s subsequent bail review. J.A. then brought a second bail application, arguing a material change in circumstances. On April 16, 2020, the Superior Court of Justice found that there was a material change of circumstances due to COVID‑19 amongst other reasons and released J.A. on bail. However, on October 21, 2020, a majority of the Court of Appeal for Ontario concluded that the motion judge erred in finding a material change in circumstances and set aside the order granting bail pending trial. A dissenting judge would have granted J.A. bail.

The Lawyers’ Professional Indemnity Company (“LawPRO”) provides mandatory professional liability insurance for lawyers and paralegals licensed by the Law Society of Ontario who engage in the practice of law in Ontario. LawPRO filed tax returns for the 2013 and 2014 taxation years, asserting that it qualified for the exemption under paragraph 149(1)(d.5) of the Income Tax Act, on the basis that its parent, the Law Society of Ontario, was a “public body performing a function of government in Canada.” Upon reassessment in 2015, the Minister of National Revenue denied the paragraph 149(1)(d.5) exemption. The Minister confirmed the reassessments in 2016. LawPRO appealed. The Tax Court judge agreed with the Minister’s decision. While the Law Society was a public body, it did not perform “a function of government in Canada.” The income earned by LawPRO, a subsidiary of the Law Society, was therefore not exempt from taxation for its 2013 and 2014 taxation years. This decision was upheld on appeal.


Independent Contractors and Business Association, Progressive Contractors Association, Christian Labour Association of Canada, Canada West Construction Union, British Columbia Chamber of Commerce, British Columbia Construction Association, Canadian Federation of Independent Business, Vancouver Regional Construction Association, Jacob Bros. Construction Inc., Eagle West Crane & Rigging Inc., LMS Reinforcing Steel Group Ltd., Morgan Construction and Environmental Ltd., Tybo Contracting Ltd., Dawn Rebelo, Thomas MacDonald, Forrest Berry, Brendon Froude, Richard Williams, David Fuoco v. Ministry of Transportation and Infrastructure, Attorney General of British Columbia (on behalf of all Ministries in the Province), Allied Infrastructure and Related Construction Council of B.C.(B.C.)

British Columbia’s Minister of Transportation and Infrastructure imposed a requirement on a construction project to replace a bridge over the Fraser River in Vancouver that all workers must be or become members of one of the affiliated unions of the Allied Infrastructure and Related Construction Council of B.C. A group of non-affiliated unions, contractors and workers filed a petition seeking judicial review of this decision. The Ministry of Transportation and Infrastructure and the Attorney General of British Columbia applied for an order striking the petition. The Allied Infrastructure and Related Construction Council of B.C. successfully applied to be added as a party. The motions judge ordered that claims for declaratory relief raising certiorari and prohibition may proceed before the court but all other claims are within the exclusive jurisdiction of the province’s Labour Relations Board and should be struck or stayed. The Court of Appeal agreed but for finding that one of the struck claims should be allowed to proceed before the court.

The applicants appealed from the order of the trial judge dismissing the counterclaim against the respondent. The counterclaim sought damages for fraudulent misrepresentation and inducing breach of contract arising from refinancing a residential property owned by another party. The applicants also sought leave to appeal the trial judge’s costs order.

The Court of Appeal dismissed the appeal. Leave to appeal costs was granted and dismissed.

When Mr. Rana’s employment as a truck driver was terminated, the union grieved his termination but was unsuccessful at negotiating a settlement. The union then advised Mr. Rana that it would not pursue the grievance further. Mr. Rana then filed a complaint to the Canada Industrial Relations Board alleging that the union breached its duty of fair representation. The complaint was dismissed as the Board found that Mr. Rana had failed to make out a prima facie case of arbitrary or bad faith conduct on the part of the union. The union was therefore not called on to respond to the complaint.

Mr. Rana applied for reconsideration which was dismissed. Mr. Rana then sought to have this decision reviewed, but the application for judicial review was dismissed.