APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37985

Resolute FP Canada Inc. v. Her Majesty the Queen as represented by the Ministry of the Attorney General

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Her Majesty the Queen as represented by the Ministry of the Attorney General v. Weyerhaeuser Company Limited, Resolute FP Canada Inc.

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Weyerhaeuser Company Limited v. Her Majesty the Queen as represented by the Ministry of the Attorney General

(Ont.)

Environmental law — Government Contracts — Assignment — Fettering discretion 

In the 1960s, a pulp and paper operation owned and operated by the Dryden Paper Company Limited discharged mercury into the nearby river system, causing harm to the First Nations downstream. In 1971, a waste disposal site was constructed. In 1976, Dryden Paper and Dryden Chemicals were amalgamated to form Reed Ltd., and, in 1977, the First Nations bands sued Reed, Dryden Paper and Dryden Chemicals for various damages resulting from the mercury waste contamination of the river (the “Grassy Narrows litigation”). In 1979, Reed was sold to Great Lakes Forest Products Limited. The Grassy Narrows litigation was settled with court approval in 1985. Great Lakes and Reed paid $11.75 million to the First Nations and released Ontario in respect of two previous indemnities. Ontario gave a new indemnity (the “1985 Indemnity”, sometimes referred to as the “Ontario Indemnity”). It promised to indemnify Great Lakes, Reed and others against claims and proceedings arising from “any damage, loss, event or circumstances, caused or alleged to be caused by or with respect to…the discharge or escape or presence of any pollutant by Reed or its predecessors, including mercury or any other substance, from or in the plant or plants or lands or premises forming part of the Dryden assets sold by Reed Ltd. to Great Lakes under the Dryden Agreement”. It was to “be binding upon and enure to the benefit of the respective successors and assigns of Ontario, Reed and Great Lakes”.

Thereafter, Reed’s successor was dissolved, and Great Lakes, essentially, became Bowater, which became Abitibi Bowater, which became Resolute. In the interim, Weyerhaeuser purchased certain Dryden assets (including the waste disposal site, which could not be severed from the other assets in time to complete the sale) from Bowater in 1998. Bowater leased the waste disposal site back until the severance was completed, when it was reconveyed to Bowater. Eventually, the owner of the waste disposal site abandoned it with court approval and was discharged from any associated liability in 2011, under the Companies’ Creditors Arrangements ActR.S.C. 1985, c. C-36 .

On August 25, 2011, the Ontario Ministry of the Environment issued a Director’s Order requiring, inter alia, Weyerhaeuser and Resolute, as prior owners of the site, to perform remedial work on the waste disposal site. Weyerhaeuser unsuccessfully sought to revoke or amend the Director’s Order before the Environmental Review Tribunal. Weyerhaeuser and Resolute both appealed the result, and that appeal was ongoing when Weyerhaeuser commenced this action against Ontario, with Resolute as an intervener. All of the parties moved for summary judgment, asking whether the 1985 Indemnity covers the costs of complying with the Director’s Order, and, if so, whether Weyerhaeuser and Resolute are entitled to its benefit.

The motions judge granted Resolute leave to intervene, dismissed Ontario’s motion for summary judgment, and granted Weyerhaeuser and Resolute’s cross-motions for summary judgment. The Court of Appeal set aside the motions judge’s decision. It granted Ontario summary judgment against Resolute. As to Weyerhaeuser, it substituted a declaration that Bowater assigned the full benefit of the 1985 Indemnity to Weyerhaeuser under the 1998 Asset Purchase Agreement and directed a final adjudication by the court below on the issue of what rights, if any, Weyerhaeuser possessed as assignee of the 1985 Indemnity when the Director’s Order was made in 2011.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38110

Éric Lebel v. Her Majesty the Queen

(Que.)

Criminal law – Evidence – Admissibility – Hearsay – Curative proviso

Mr. Lebel, the applicant, is an officer on Ville de Sherbrooke’s police force. He was returning from an evening spent in a bar while off duty when he collided with a grader that was plowing snow. Some road maintenance employees who witnessed the events observed that he was intoxicated, and the supervisor called the police service’s call centre twice to ask the police to intervene. Mr. Lebel was prosecuted by way of summary conviction on charges of impaired driving and failure to stop at the scene of an accident. At trial, the prosecution adduced recordings of the calls to the police in evidence as res gestae to serve as proof of their content. Mr. Lebel was found guilty. He appealed unsuccessfully to the Superior Court and the Court of Appeal. In the Court of Appeal, he submitted (1) that the recordings of the calls to the police were not admissible in evidence and (2) that the judge had erred in commenting on the order in which the defence’s witnesses were heard and on the fact that certain witnesses were not called.

37996 

Thanh Truc Truong v. Her Majesty the Queen

(F.C.)

Taxation — Assessment — 

The applicant, Thanh Truc Truong appealed net worth assessments issued against her by the Minister of National Revenue, under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .) and the Excise Tax Act, R.S.C. 1985, c. E-15 .

Net worth assessments were issued by the Minister in this case because the records provided by Ms. Truong were grossly inadequate. The assessment methodology involves making an estimate of increases to a taxpayer’s net worth. The assessments under the Income Tax Act  added to income an aggregate amount of $1,682,509 for the 2005 to 2009 taxation years, inclusively. They also imposed gross negligence penalties with respect to these amounts. The assessments under the Excise Tax Act  assumed that Ms. Truing had unreported GST collectible for the same periods in an aggregate amount of $92,185. Gross negligence penalties were also imposed on these amounts.

Ms. Truong appealed the assessments to the Tax Court, which upheld them except for a small reduction in unreported income. The Federal Court of Appeal found the Tax Court had made no reviewable error and the appeal should be dismissed.

37581

Antonios Nabil Riad Sahyoun, by his committee and father, Nabil Riad Sahyoun et al. v. Helena Ho et al.

(B.C.)

Civil procedure — Appeals — Abandonment — Appointment of counsel

The Sahyouns appeal an order that dismissed the underlying action and dismissed an application by Dr. Sahyoun to revisit an earlier application for a state-funded lawyer to represent Antonios’ interests. The underlying action advanced multiple claims against 49 defendants relating to Antonios Sahyoun’s experiences as a young child. In 2015, the appeal was dismissed for want of prosecution, disclosing no reasonable cause of action, being unnecessary, frivolous or vexatious, and otherwise being an abuse of process. Dr. Sahyoun appealed and, a week before the appeal was to be heard, applied for the appointment of a new litigation guardian and state-funded lawyer for Antonios. That application was dismissed, but Dr. Sahyoun was permitted to renew it before the division hearing the appeal. On the day of the appeal, he requested an adjournment to prepare for the review of the application to appoint state-funded counsel for Antonios. The adjournment was denied, but the Court of Appeal allowed him to reargue the application without meeting the test under s. 9(6). Dr. Sahyoun refused to proceed as directed, withdrew as Antonios’ litigation guardian, and left the courtroom. The appeal was dismissed as abandoned.