APPEAL DISMISSED

Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43 (Intellectual property — Copyright — Crown copyright — Plans of survey)

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

SCC No. Case Name Province of Origin Keywords
38585 Attorney General of Ontario v. G ON Charter of rights — Right to equality

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords
38629 Tzvi Erez v. Her Majesty the Queen ON Criminal law — Proceeds of crime
38615 Her Majesty the Queen v. Claudio Montesano ON Criminal law — Sentencing
38647 Igor Stukanov v. Attorney General of Canada FC Administrative law — Judicial Review
38633 Jean-Guy Poulin v. Attorney General of Quebec, Agence du revenu du Québec QC Civil procedure — Class actions
38648 Ingrid Hayden v. Alberta Health Services, operating business as the Foothills Medical Center, et al. AB Courts — Judges — Recusal
38619 Michael Erwin Helle v. Janice Elizabeth Helle BC Family law — Support — Spousal support
38577 Deborah Lee Doonanco v. Her Majesty the Queen AB Criminal law — Jury — Charge to jury
38662 Daud Ahmad Khan, Fawad Khan, Ishaq Ahmad Khan v. Young-Hew Son, Young Son ON Civil procedure — Vexatious proceedings
38638 Alain Chenel v. Her Majesty the Queen QC Criminal law — Sentencing — Considerations
38608 Sajjad Asghar v. Joallore Alon ON Civil procedure – Motion for summary judgment
38703 Rawia Salman v. Robert Ipacs, Ipacs Law Office ON Torts — Professional liability — Negligence
38684 Stefan Brands v. Patrice Dumais, Sylvain Caron and BDO Canada LLP QC Civil procedure — Expert evidence — Expert report
38646 Taj Thaine Williams v. Her Majesty the Queen ON Criminal law — Sentencing
38699 ING Insurance Company of Canada, also known as, or formerly, ING Halifax Insurance Company v. Karla Garay Merino, et al. ON Insurance — Automobile insurance
38671 Pierre Lachance v. Conseil de la justice administrative, Attorney General of Quebec, Judge Marie Langlois of the Commission des lésions professionnelles QC Administrative law — Judicial review
38605 Nickola Antic v. Her Majesty the Queen ON Charter of Rights — Right to be tried within reasonable time
38654 Musharaff Iqbal v. Sohail Khawaja Mansoor, Gold International Inc. ON Appeals — Courts — Jurisdiction 
38656 Larry Peter Klippenstein v. Her Majesty the Queen MN Criminal law — Private prosecutions
38670 Larry Peter Klippenstein v. Her Majesty the Queen MN Criminal law — Private prosecutions
38644 Sufian Zuhdi Taha v. National Bank of Canada PEI Judgments and orders — Summary judgment
38643 Mary David and Olympia Interiors Ltd. v. Her Majesty the Queen FC Appeals — Extension of time
38634 Mohand Mohamad v. Her Majesty the Queen ON Criminal law — Evidence
38655 Syed Ahmad (also known as Joe Ahmad) and Marie Ahmad v. Alan Merriman and the Director of the Residential Tenancy Branch BC Administrative law — Judicial review
38651 L.S. v. P.L. QC Family law — Divorce — Family assets
38673 Stéphane Belval v. Her Majesty the Queen QC Criminal law — Evidence — Assessment
38660 Attorney General of Canada v. Sherri Ann Morrissey FC Taxation — Income tax — Assessment
 
 
 
 
 
 

APPEAL DISMISSED

Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43

Intellectual property — Copyright — Crown copyright — Plans of survey

On appeal from a judgment of the Ontario Court of Appeal (2017 ONCA 748), affirming a decision of Belobaba J. (2016 ONSC 1717)

In 2007, Keatley Surveying Ltd. brought a motion to certify a class action on behalf of all land surveyors in Ontario who registered or deposited plans of survey in the provincial land registry offices. It claimed that Teranet Inc., which manages Ontario’s electronic land registry system as a service provider to the government pursuant to statutory authority and in accordance with the terms of implementation and licensing agreements with the province, infringed surveyors’ copyright by digitizing, storing and copying the plans of survey created by the surveyors and registered or deposited in the electronic land registry system. When plans of survey are registered and deposited at a physical land registry office in Ontario, Teranet scans the plans of survey and adds this electronic information to its databases. Teranet operates two service portals, Teraview and GeoWarehouse, through which licensed users can access Ontario’s land registry documents, including plans of survey, for a statutorily prescribed fee.

Seven common issues were certified in Keatley’s proposed class action. In 2016, Keatley and Teranet moved for summary judgment. Determination of the motion turned on the second common issue, which asked whether the copyright in the plans of survey belongs to Ontario pursuant to s. 12  of the Copyright Act  as a result of the registration or deposit of those plans in the Ontario land registry office. Section 12  of the Copyright Act  provides that the copyright in any work prepared or published by or under the direction or control of Her Majesty or any government department belongs to Her Majesty. The motions judge found that the copyright belonged to the Crown and therefore that there was no copyright infringement. Since the answer to the second common issue was dispositive of Keatley’s claim, the motions judge allowed Teranet’s motion for summary judgment and dismissed Keatley’s class action. The Court of Appeal dismissed Keatley’s appeal. Keatley appeals to the Court, and Teranet cross‑appeals in order to preserve its rights in relation to the remaining common issues.

Held: The appeal should be dismissed. It is unnecessary to deal with the cross‑appeal.

Per Abella, Moldaver, Karakatsanis and Martin JJ.:

The interpretation of s. 12  of the Copyright Act  is informed both by the words of the provision and the general purposes and objectives of the Copyright Act  as the Court has come to understand them in the century since s. 12  came into being. Together these interpretive tools yield a narrow scope for Crown copyright. This case is the Court’s first opportunity to examine the scope and application of s. 12  of the Copyright Act , enacted in 1921.

The opening language of s. 12  — “without prejudice to any rights or privileges of the Crown” — reflects the historical Crown prerogative over publishing. The remainder of s. 12  provides a statutory basis for Crown copyright, which will subsist in any work “prepared or published by or under the direction or control of Her Majesty”. The purpose of statutory Crown copyright is to protect works prepared or published under the control of the Crown where it is necessary to guarantee the authenticity, accuracy and integrity of the works in the public interest. But Crown copyright cannot be so expansive in scope that it allows for the routine expropriation of creators’ copyright in their works or that it impedes the public interest in accessing information.

The notion of direction or control is critical to the assessment of whether Crown copyright exists. The goal of the s. 12  inquiry in its entirety is to determine whether the degree of the Crown’s direction and control over the preparation or publication of the work is sufficient to vest copyright in the Crown.

A work will be prepared by the Crown when its agent or employee brings the work into existence for and on behalf of the Crown in the course of his or her employment or when the Crown essentially determines whether and how a work will be made, even if the work is produced by an independent contractor. In these two circumstances, the Crown exercises direction and control over both the person preparing the work and the work that is ultimately prepared.

The evaluation of the Crown’s direction or control takes on heightened importance in determining whether a work is published by the Crown within the meaning of s. 12 . Merely making someone else’s work available to the public is insufficient. A work will only be published by or under the direction or control of the Crown when it can be said that the Crown exercises direction or control over the publication process, including over both the person publishing the work and the nature, form and content of the final, published version of a work.

Determining whether a work was published with sufficient governmental direction or control to comply with s. 12  necessitates an inquiry into the Crown’s interest in the works at the time of publication. Relevant indicia of governmental direction or control may include the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt‑in nature of the statutory scheme; and the necessity of the Crown making the works available to the public.

The crux of this appeal is publication, namely whether the registered and deposited plans of survey were published by or under the direction or control of the Crown. The nature and extent of the Crown’s direction and control are informed by a comprehensive statutory regime governing land registration in Ontario which gives the Crown complete control over the process of publication. The Crown has proprietary rights in the plan and custody and control over the physical plans. The statutory scheme ensures that the Crown directs and controls the format and content of registered plans. This control subsists after registration or deposit. It is only the Crown who is able to alter the content of the plans and it is the Crown that has ongoing control over and responsibility for the publishing process, including the final form of the work. Likewise, it is the Crown who — through validly enacted legislation — has the exclusive authority to make copies of the registered or deposited plans of survey.

When either the Crown or Teranet publishes the registered or deposited plans of survey, copyright vests in the Crown because the Crown exercises direction or control over the publication process. This conclusion furthers the underlying purposes of Crown copyright because registered and deposited plans of survey in the land registry system are intended to be relied upon by members of the public to determine property rights and obligations.

In accordance with the principle of technological neutrality, Ontario’s reliance on new technologies post‑digitization does not change the assessment of whether the Crown has copyright by virtue of s. 12  of the Copyright Act . There is no practical difference between obtaining a copy of a registered or deposited plan of survey from a physical land registry office or electronically. Because the Crown has copyright in the works pursuant to s. 12 of the Act, there is no infringement under the electronic registry system.

 Per Wagner C.J. and Côté and Brown JJ.:

There is agreement with the majority that the appeal should be dismissed since copyright in plans of survey registered or deposited in the land registry office belongs to Ontario under s. 12  of the Copyright Act . There is disagreement, however, with the majority’s interpretation of s. 12 .

Statutory interpretation entails discerning Parliament’s intention by examining statutory text in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects. On its face, it would appear that the ordinary and grammatical sense of the text of s. 12  is clear: copyright in “any work” vests in the Crown where the Crown prepares or publishes the work, or a third party prepares or publishes the work under the Crown’s direction or control. However, the legislature does not intend to produce absurd consequences, and a literal reading of s. 12  would result in an overly broad Crown copyright which sweeps aside the careful balance that Parliament struck between creators’ and users’ rights. A literal reading would effectively empower the Crown to expropriate copyright from independent creators in any copyrightable work merely by publishing the work itself or causing a third party to publish the work. Although the courts below and the majority recognized the absurdity worked by a literal reading of s. 12 , their solution — requiring that the Crown have sufficient “direction or control” in the publishing process, including the work itself — reads out part of s. 12  and distorts what is left.

 “Prepared or published by or under the direction or control” of the Crown should be interpreted according to its ordinary meaning: the act of preparing or publishing the work must be done either by the Crown itself or under the Crown’s direction or control. In each case, inquiries must be made into the person preparing or publishing the work, and into that person’s relationship to the Crown. A requirement that both the “prepared” prong and the “published” prong entail inquiring into whether the Crown has sufficient direction or control in the work itself should not be imported into the statute. The question to ask is simply whether the Crown brought about the preparation or publication of the work, either by its own agents and servants or by exercising direction or control over a third party.

A work is prepared by or under the direction or control of the Crown where the Crown is in a position to determine whether or not a work will be made. It is not sufficient for the purposes of the “prepared” prong for the Crown to determine that, if the work is to be made, it will be made a particular way. A work is prepared by the Crown where an agent or servant of the Crown brings the work into existence in the course of his or her duties. A work is prepared under the direction or control of the Crown where the Crown determines that a third party shall make the work. A work is published by the Crown where the Crown itself publishes the work, and a work is published under the direction or control of the Crown where a third party, such as an independent contractor, publishes the work at the Crown’s behest. Neither prong requires an inquiry into whether the Crown exercises direction and control over the person preparing the work and the work that is ultimately prepared. The only inquiry is into the identity of the author and the relationship of that author to the Crown.

However, the fact that a work is published “by or under the direction or control” of the Crown is not the end of the s. 12  analysis. Once a court is satisfied that a work was “prepared or published by or under the direction or control” of the Crown, it must then consider whether, at the time of preparation or publication, the work is a “government work”. A government work is a work that serves a public purpose and in which vesting copyright in the Crown furthers that purpose. These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination — the mere fact that the government has a work prepared or published is not itself conclusive that the work serves a public purpose.

The plans of survey in the instant case are made available to the public and are therefore both “published by” Ontario and published by Teranet under Ontario’s direction or control, since Ontario makes the plans available in the land registry office, and Teranet makes the plans available to subscribers of its platforms. Furthermore, the plans of survey at issue in this case are clearly government works. They have a clear public character, as they define and illustrate the legal boundaries of land within Ontario, clarifying land ownership, and allowing landowners and users to govern their affairs accordingly. People rely on the accuracy of survey plans for determining their interest in property and facilitating land transactions. By holding copyright in the plans, the Crown can restrict the ability of a surveyor or other private party to make alterations to the plans and then sell or distribute them privately. By asserting Crown copyright, the government can ensure that survey plans obtained from the land registry office or from Teranet are accurate. As well, because survey plans are so widely relied upon, it is important to ensure wide public availability so that whomever requires access to them can obtain it. As the registered and deposited plans of survey are government works when they are “published by or under the direction or control” of Ontario, copyright in them is vested in the Crown under s. 12 , and not in the original surveyors.

Citation: Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43

SCC File Nos. : 37863

Reasons for Judgment: Abella J. (Moldaver, Karakatsanis and Martin JJ. concurring)

Joint Concurring Reasons: Côté and Brown JJ. (Wagner C.J. concurring)

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17918/index.do

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

38585

Attorney General of Ontario v. G

(Ont.)

Charter of rights — Right to equality — Discrimination based on mental or physical disability

In 2002, G was found not criminally responsible by reason of mental disorder on charges of sexual assault and other charges. In 2003, G was given an absolute discharge by the Ontario Review Board. However, pursuant to Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, G was obliged to register under the provincial sex offender registry and report to provincial authorities for life. G was also required to register and report under the federal registry, pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10  (“SOIRA ”). In 2014, G commenced legal proceedings seeking a declaration that the application of the federal and provincial sex offender registries to persons found not criminally responsible who are then granted a subsequent absolute discharge infringes their rights under ss. 7 and 15 of the Charter.

The Ontario Superior Court of Justice dismissed G’s application. The application judge found that despite some negative impact resulting from the sex offender registry requirements, there was no Charter breach. The Ontario Court of Appeal unanimously allowed G’s appeal and concluded that the provincial and federal sex offender registries infringe G’s s. 15  Charter rights (and those of individuals in his situation), and that such infringements cannot be saved under s. 1. In terms of remedy, the Court of Appeal declared Christopher’s Law and SOIRA  to be of no force or effect in their application to individuals in G’s situation. It suspended the effect of the declaration for 12 months; however, it exempted G from this suspension.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38629

Tzvi Erez v. Her Majesty the Queen

(Ont.)

Criminal law — Proceeds of crime

In 2014, the applicant Mr. Erez pleaded guilty to 12 counts of fraud involving 12 complainants. Subsequently, Mr. Erez brought an application to strike the guilty pleas. That application was dismissed. A hearing to determine the amounts of the frauds as well as a sentencing hearing were subsequently held.

Having reviewed the evidence, McMahon J. found that the frauds amounted to a total of  $6,261,632. McMahon J. further decided that it was appropriate to order Mr. Erez to serve eight years in a federal penitentiary, to issue freestanding restitution orders in respect of each complainant totalling $6,261,632, to order Mr. Erez to provide a DNA sample, and to order Mr. Erez to pay a fine in lieu of forfeiture in the amount of $6,261,632. McMahon J. specified that the restitution order would take priority over payment of the fine, that Mr. Erez would have 10 years after the completion of his sentence to pay the fine, and that in default he would be sentenced to a further seven years in the federal penitentiary. Having found no reason to intervene, the Court of Appeal dismissed Mr. Erez’ appeal on both his conviction and sentence.

38615

Her Majesty the Queen v. Claudio Montesano

(Ont.)

Criminal law — Sentencing

In 2016, Mr. Montesano argued with his wife and pushed her to the ground. He pleaded guilty to one count of assault. His criminal record at sentencing bore a handwritten notation that in 2011 he obtained an absolute discharge for an assault against his wife. Section 6.1(1) (a) of the Criminal Records Act, R.S.C., 1985, c. C‑47 , sets out that no record of a discharge in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without prior approval of the Minister, if more than one year has elapsed since the offender was discharged absolutely. The sentencing judge denied a conditional discharge because of the prior assault and ordered a suspended sentence with 12‑months of probation. The summary conviction appeal judge allowed an appeal and remitted the matter for a new sentencing hearing.

The Court of Appeal allowed an appeal and held the appropriate sentence was a suspended sentence with 12‑months of probation.

38647

Igor Stukanov v. Attorney General of Canada

(F.C.)

Administrative law — Judicial Review

In 2017, the Canadian Human Rights Commission dismissed a complaint from the applicant Mr. Stukanov that the Canadian Intellectual Property Office discriminated against him when it denied his application for a patent. Mr. Stukanov applied for judicial review of this decision. The Federal Court dismissed the application for judicial review. Having reviewed the Commission’s process, it found that it had not denied Mr. Stukanov procedural fairness and that the Commission’s decision was reasonable. The Federal Court of Appeal unanimously dismissed the appeal. It found no ground to interfere with the judgment of the Federal Court.

38633

Jean-Guy Poulin v. Attorney General of Quebec, Agence du revenu du Québec

(Que.)

Civil procedure — Class actions

The applicant, Mr. Poulin, is not represented by counsel. He applied for authorization to institute a class action against the respondents. He complained that, in order to receive the solidarity tax credit provided for in the Taxation Act, CQLR, c. I‑3, Revenu Québec required that the payment be made by direct deposit to a bank account. The Superior Court dismissed his application on the ground that he was not represented (art. 87(2) of the Code of Civil Procedure). The Court of Appeal dismissed the appeal, concluding that it was [translation] “destined to fail for the reason given by the application judge”.

38648

Ingrid Hayden v. Alberta Health Services, operating business at the Foothills Medical Center in Calgary, Alberta, Vickie Kaminski, President and CEO of Alberta Health Services, Tina Giesbrecht, Laurie Blahitka, Jo Ann Beckie, Sara J. Pereira, Chris Spanswick, Mark Kent, Marty Sholtz, Linda Norton, Connie Lorraine Burkhart, Suzanne Basiuk, W. Becker, A. Eloff, Lori Montgomery S., Rob Caswell, Cynthia Cook, Larry Walter, Christopher Dunn, Jaylene Macdonald, Ryan Dimitriou, Sara Gallow, Glenda Thompson, Stacey Roach, Brenda Ward, Katherine McCauley, Ryan Roche, Ingrid Martinez, Jenna Steen, Laura Nicholson, Dennis Holliday, David Silverstone, Johanne Edwards, Cathy Edmonds, Irene O'Callaghan, Ruth Sutherland, Dale Gyonyor, Allyson Kinney, Dawn Lake, Jann Lynn-George, Steven R. Jewell, Michael Tolfree, Derek Wojtas, Waqar Mughal, Linda Teskey, Matthew Murphy, Alberta Union of Provincial Alberta Union of Provincial Employees, operating business in Edmonton, Alberta, Guy Smith, President of Alberta Union of Provincial Employees, Reynold Morgan, Greg Maruca, David Lardner, Stacey McKenna, Michael Hughes, Nugent Law Office, operating business in Edmonton, Patrick Nugent, Erin Ludwig, Norton Rose Fulbright Canada LLP

(Alta.) (Civil) (By Leave)

Courts — Judges — Recusal

Ms. Hayden, applicant, filed an action against the respondents in which she alleged that her employment was wrongfully terminated, that she was harassed in the workplace, and that the respondents conspired against her to withhold her medical records. In the course of those proceedings, she requested that the case management judge recuse himself on the basis of bias. The judge refused. The Court of Appeal dismissed the appeal.

38619

Michael Erwin Helle v. Janice Elizabeth Helle

(B.C.)

Family law — Support — Spousal support

Mr. and Ms. Helle separated in 2003, after 17 years of marriage. They had three children together, who are all now independent adults. Ms. Helle left the paid work force after the birth of their first child and had no income of her own at the time of separation. The parties entered into a separation agreement in 2004, which was incorporated into their divorce order in 2005. The separation agreement included provisions for property division, child support, and spousal support. Under the agreement, Mr. Helle was required to pay spousal support of $1,400 per month. It included a provision that allowed for the support to be reviewed after three years. In 2007, Mr. Helle purchased of the balance of shares in the company he worked for and became its chief executive officer. His income increased substantially. No review of spousal support was sought until 2016, when Mr. Helle applied to terminate or reduce his support obligations. Ms. Helle sought a review or variance of ongoing and retroactive support.

38577

Deborah Lee Doonanco v. Her Majesty the Queen

(Alta.)

Criminal law — Jury — Charge to jury

Ms. Doonanco fatally shot her domestic partner in her house. She set the house on fire and called 911. Ms. Doonanco’s phone calls while in remand were recorded and retained with written notice. Although s. 31.4 of Alberta’s Correctional Institution Regulation provides that recordings of inmate calls may not be retained for more than 90 days, a production order for the recordings was authorised after 90 days. An application to exclude the calls from evidence was dismissed. Crown counsel used possible inculpatory utterances in the calls to cross‑examine Ms. Doonanco. At trial, Ms. Doonanco led expert opinion evidence that at the time of the shooting she had suffered dissociative thinking, battered wife syndrome, post‑traumatic stress disorder and major depressive disorder. A Crown expert opined, and Crown counsel argued, that features of battered wife syndrome were not present. In her jury charge, the trial judge directed that a failure to retreat during a period of 40 to 45 minutes when the domestic partner was not present in the house before the shooting was a factor to consider in assessing the reasonableness of the application of force. A jury convicted Ms. Doonanco for second‑degree murder, arson and indecent interference with human remains. A majority of the Court of Appeal dismissed her appeal.

38662

Daud Ahmad Khan, Fawad Khan, Ishaq Ahmad Khan v. Young-Hew Son, Young Son

(Ont.) (Civil) (By Leave)

Civil procedure — Vexatious proceedings

The respondents sought a declaration that the applicants are vexatious litigants within the meaning of s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140. At the Ontario Superior Court of Justice, the motion judge declared the applicants to be vexatious litigants. All motions and applications instituted by the applicants as well as an application for judicial review were stayed. The Court of Appeal unanimously dismissed the applicants’ appeal from the motion judge’s decision finding no palpable and overriding error.

38638

Alain Chenel v. Her Majesty the Queen

(Que.)

Criminal law — Sentencing

The applicant, Alain Chenel, entered a guilty plea on charges of criminal harassment and uttering death threats. After hearing the sentencing submissions, Judge Tremblay of the Court of Québec sentenced Mr. Chenel to 14 months in custody on the count of criminal harassment and 10 months concurrent on the count of uttering threats, because he was of the view that this was a serious case of domestic violence and that a sentence outside the sentencing range was justified. The Court of Appeal dismissed the motion for leave to appeal the sentence, finding that Mr. Chenel had not shown any error that warranted its intervention.

38608

Sajjad Asghar v. Joallore Alon

(Ont.)

Civil procedure — Motion for summary judgment 

The applicant attended a social event that had been organized by the respondent. The two men did not know each other before. At the event, there was a prize awarded to the first guest who could produce a condom. The applicant won the prize. As he was collected it, a photograph was taken of him holding a condom. A few days after the event, the respondent posted the photograph of the applicant holding a condom on his Twitter account and posted some statements on his Twitter account. The applicant sued the respondent for defamation. The respondent moved for summary judgment dismissing the action on the grounds that the statements made were true. The motion judge granted summary judgment and dismissed the applicant’s action. The Court of Appeal dismissed the applicant’s appeal.

38703

Rawia Salman v. Robert Ipacs, Ipacs Law Office

(Ont.)

Torts — Professional liability — Negligence

Ms. Salman brought an action against the respondents, a lawyer and his firm, alleging that they were negligent in counselling her to accept an improvident settlement of a tort claim arising from a motor vehicle accident. The action was dismissed on a motion for summary judgment. The motion judge found that Ms. Salman had not been coerced into settling, and that her lawyer (1) had explained to her his reasons for recommending the settlement before having her sign a release, and (2) had had her sign a second release two weeks later after she expressed reservations. In the motion judge’s view, the settlement was far from improvident – it was favourable to Ms. Salman and in her best interest – and could not be challenged. The Court of Appeal dismissed Ms. Salman’s appeal.

38684

Stefan Brands v. Patrice Dumais, Sylvain Caron and BDO Canada LLP

(Que.)

Civil procedure — Expert evidence

The applicant, Dr. Stefan Brands is a cryptographer who invented a patent portfolio in the field of cryptography. In December 2002, he assigned the patent portfolio to a family trust and claimed a capital loss in his tax return based on a fair market value of the patent portfolio. In February 2004, Revenue Quebec rejected the claimed loss. In April 2004, Dr. Brands filed an objection that was rejected in February 2007 by Revenue Quebec. As a result, in May 2007, Dr. Brands filed an appeal against the decision of Revenue Quebec with additional certified valuation reports on the fair market value of the patent portfolio. In April 2015, Dr. Brands received the courter-valuation report prepared by the respondents Patrice Dumais, Sylvain Caron and BDO Canada LLP for Revenue Quebec. In June 2016, Dr. Brands provided a rebuttal valuation report which was accepted by Revenue Quebec. Accordingly, both parties reached an agreement. In June 2017, Dr. Brands hired Professor Jan Ericsson, head of the finance department at McGill University to review the specific faults in the report of the respondents. Prof. Ericsson had to review, among other things, the valuation methodology used by the respondents. Further, he had to assess whether the faults alleged in the rebuttal report appeared to be the result of honest mistakes or negligence by the respondents acting in good faith or whether they appeared to be the result of an intentional effort aimed at fabricating a low valuation outcome. After receiving the report produced by Prof. Ericsson in October 2017, Dr. Brands filed in April 2018, a claim for damages against the respondents on the basis that they prepared a faulty and deliberately misleading report. In July 2018, the respondents filed an application for the dismissal of Prof. Ericsson’s report as well as an application to strike allegations related to it. The Superior Court granted the application for the dismissal of the expert report because it contained opinions that fell within the exclusive domain of the trial judge and the application to strike allegations. The Court of Appeal dismissed the appeal.

38646

Taj Thaine Williams v. Her Majesty the Queen

(Ont.)

 

Criminal law — Sentencing 

 

The applicant was convicted of assault causing bodily harm and theft. The Crown applied to have the applicant declared a dangerous offender. At the time of sentencing, the applicant was 32 years old and he had a lengthy criminal record. Dr. Klassen opined that there was no reasonable possibility that the applicant’s risk could be managed in the community. No contrary psychiatric evidence was proffered by the applicant. The applicant was declared a dangerous offender and was sentenced to an indeterminate period of incarceration. The sentence appeal was dismissed.

 

38699

ING Insurance Company of Canada, also known as, or formerly, ING Halifax Insurance Company v. Karla Garay Merino, Margarita Merino, Adis Perez Charles and Lou Ann Garay

(Ont.)

Insurance — Automobile insurance

On September 12, 2002, Timothy Klue was driving the 1994 Jeep Cherokee that he co-owned with his spouse Sonia Abou‑Khalil when he struck the respondent, Karla Merino. As a result of the accident, Ms. Merino, a university student, was seriously injured. She, as well as her mother, Margarita Marino and her sisters, Adis Perez Charles and Lou Ann Garay, respondents, commenced a tort/uninsured action against Mr. Klue and Ms. Abou‑Khalil in August 2004. At the time, the respondents were informed by a field adjuster for the applicant, ING Insurance Company of Canada, that neither Mr. Klue nor Ms. Abou‑Khalil had an automobile policy with ING. The respondents obtained judgment against both spouses in the amount of $2, 000, 000 in July 2011. In April 2012, the respondents commenced an action against ING under s. 258 of the Insurance Act seeking declaratory and monetary relief in order to recover the amount of the judgment awarded against the spouses up to the insurance automobile policy limits. The respondents contend that the policy was not validly terminated before the accident. In response, ING filed proceedings seeking an order to dismiss the action on the basis that it was not insuring the 1994 Jeep Cherokee on the accident date. Although a broker provided both spouses with a 30-day binder evidencing an automobile insurance contract with ING, ING affirms that as a result of material misrepresentations and non-disclosure made in the application for insurance discovered after the binder was issued, it rescinded the contract more than two months prior to the accident. Both parties filed motions for summary judgment in order to dispose of the issues raised in their respective proceedings. The Ontario Superior Court of Justice granted ING’s motion for summary judgment and therefore dismissed the respondents’ action and motion for summary judgment. The Court of Appeal allowed the appeal.

38671

Pierre Lachance v. Conseil de la justice administrative, Attorney General of Quebec, Judge Marie Langlois of the Commission des lésions professionnelles

(Que.) (Civil) (By Leave)

Administrative law — Judicial review — Standard of review

Pierre Lachance filed a complaint with the complaint review committee of the Conseil de la justice administrative against an administrative judge of the Administrative Labour Tribunal. He alleged that the administrative judge had violated the rules of natural justice and the protection of professional secrecy in her decision to dismiss an application for review of a decision by the Commission des lésions professionnelles concerning his spouse. The review committee dismissed Mr. Lachance’s complaint on the ground that it was clearly unfounded because it did not raise any breach of ethics. The Superior Court dismissed Mr. Lachance’s application for judicial review and his action for damages, finding that the review committee had acted within its jurisdiction by determining whether the complaint was admissible and that its decision was reasonable. The Court of Appeal dismissed Mr. Lachance’s motion for leave to appeal that judgment.

38605

Nickola Antic v. Her Majesty the Queen

(Ont.)

Charter of Rights — Right to be tried within reasonable time

The applicant brought an application for a stay of proceedings for unreasonable delay pursuant to s. 11(b) of the Charter. The trial judge concluded that both under the R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and transitional frameworks for analyzing delay, the delay was not unreasonable. The application for a stay was dismissed. After a trial by judge alone, the applicant was convicted of robbery and breach of probation, and was sentenced to 20 months incarceration. The conviction appeal was dismissed. Leave to appeal sentence was granted and the sentence appeal was dismissed.

38654

Musharaff Iqbal v. Sohail Khawaja Mansoor, Gold International Inc.

(Ont.)

Appeals — Courts — Jurisdiction — Civil procedure — Costs

In his action against the respondents, Mr. Iqbal was awarded damages and $20,000 in costs in an arbitration.  The respondents sought leave to appeal the award and Mr. Iqbal brought a motion for confirmation.  Leave was refused and the motion for confirmation was granted. Mr. Iqbal sought costs of over $100,000 but was awarded the sum of $2,500 for the leave and confirmation motions.  Mr. Iqbal commenced a new application, seeking costs of just over $100,000.  The application was dismissed and the respondents were awarded $2,500 in costs.  Mr. Iqbal appealed that decision.  He was advised by the court administration that as his appeal was only as to costs, he had to first obtain leave to appeal.  Mr. Iqbal proceeded with his appeal without obtaining leave.  His appeal was quashed.

38656

Larry Peter Klippenstein v. Her Majesty the Queen

(Man.)

Criminal law — Private prosecutions — Jurisdiction of Crown to stay proceedings

Mr. Klippenstein, applicant, is the informant on a number of private informations laid against named individuals alleging criminal charges, specifically breach of trust, disobeying a statute, and fraud, under ss. 122 126 , and 380  of the Criminal Code , respectively. The informations were before a provincial court judge in the fall of 2017, for the purpose of considering whether to compel the appearance of the accused persons named in the informations by issuing a summons or warrant (process) pursuant to sections 507.1(1)  and (2) , but prior to that determination being made, the Crown intervened in the prosecutions and stayed the proceedings. Mr. Klippenstein appealed to the superior court seeking an order “voiding” those stays. The Crown moved for summary dismissal of the application. The motion was granted and the application was dismissed. The Court of Appeal dismissed the appeal.

38670

Larry Peter Klippenstein v. Her Majesty the Queen

(Man.)

Criminal law — Private prosecutions — Jurisdiction of Crown to stay proceedings

Mr. Klippenstein, applicant, initiated a private prosecution by swearing 96 informations. After reviewing the charges, the Crown stayed all counts pursuant to s. 579  of the Criminal Code . Mr. Klippenstein’s appeal to the Court of Queen’s Bench was summarily dismissed. His appeal to the Court of Appeal was also dismissed. While the court acknowledged Mr. Klippenstein’s reliance on Dowson v. The Queen, [1983] 2 S.C.R. 144, for the proposition that he had a right to a pre‑enquete in the provincial court before the Crown’s stay of proceedings was entered, it nevertheless noted that that case was no longer good law. The court also dismissed Mr. Klippenstein’s allegations of bias.

38644

Sufian Zuhdi Taha v. National Bank of Canada

(P.E.I.)

Judgments and orders — Summary judgment

The applicant commenced an action against the respondent seeking damages. Pursuant to Rule 2.1, the court determined that the action was frivolous, vexatious or otherwise an abuse of the process of the court and struck the statement of claim. This decision was upheld on appeal.

38643

Mary David and Olympia Interiors Ltd. v. Her Majesty the Queen

(F.C)

Appeals — Extension of time

The respondent Crown sought orders striking two notices of appeal filed by the applicants’ Ms. David and her company, Olympia Interiors Ltd., as well as orders preventing the applicants from instituting further proceedings without leave. The Tax Court of Canada granted the Crown’s motions. The applicants brought a motion to extend the time to file notices of appeal of these decisions before the Federal Court of Appeal. The Federal Court of Appeal found that the applicants did not meet the requirements for an extension of time and dismissed the motion.

38634

Mohand Mohamad v. Her Majesty the Queen

(Ont.)

Criminal law — Evidence — Prior out‑of‑court statements

Mr. Mohamad admitted that he fatally shot a man. He claimed self‑defence and provocation. He was tried before a jury for first degree murder. A crown witness, the only eye witness, gave two police statements on the night of the shooting, a sworn videotaped statement days later, and he testified at a preliminary hearing. He testified at trial but was uncooperative, inconsistent with his prior statements, and he claimed memory loss. The trial judge admitted his videotaped statement to police and his preliminary hearing testimony into evidence. During deliberations, the jury asked to watch a portion of the videotaped police statement. The trial judge held the jury should watch the statement in its entirety and refused a request from defence counsel to read back to the jury parts of the cross‑examination of the witness. The jury found Mr. Mohamad guilty of second degree murder. The Court of Appeal dismissed an appeal from the conviction.

38655

Syed Ahmad (also known as Joe Ahmad) and Marie Ahmad v. Alan Merriman and the Director of the Residential Tenancy Branch

(B.C.)

Administrative law — Judicial review — Arbitral decision — Residential tenancy agreement

On November 1, 2016, the applicants Mr. Syed Ahmad and Ms. Marie Ahmad signed a 12‑month residential tenancy agreement with the landlord and respondent Mr. Alan Merriman. The tenancy began on December 1, 2016. A monthly rent in the amount of $1600 was payable on or before the first day of each month. A secured deposit of $800 was paid by the applicants at the start of the tenancy and was held by Mr. Merriman. On August 31, 2017, the applicants received from Mr. Merriman a two‑month notice to end tenancy for landlord’s use of property pursuant to the Residential Tenancy Act, S.B.C. 2002, c. 78 (RTA). The effective move‑out date was fixed to November 30, 2017. On October 1, 2017, the applicants provided Mr. Merriman with a written notice to end the tenancy early under the RTA effective on October 30, 2017. Further, the applicants advised that they would not be paying rent for the month of October because it should be considered as the one month’s rent compensation pursuant to the RTA. On October 4, 2017, Mr. Merriman served the applicants a 10‑day notice to end tenancy for unpaid rent in the amount of $1600 as a result of the applicants’ failure to pay the rent for the month of October 2017. On October 12, 2017, Mr. Merriman submitted a dispute application with the Residential Tenancy Branch to claim compensation from the applicants for unpaid rent and to retain the security deposit in partial satisfaction of the claim. On December 20, 2017, the applicants submitted a dispute application with the Residential Tenancy Branch to claim the return of their security deposit. On June 4, 2018, the Residential Tenancy Branch concluded that the parties were subject to a fixed term tenancy; therefore, the applicants could not end the tenancy earlier than November 30, 2017. As a result, the arbitrator ordered that Mr. Merriman be entitled to a monetary award of $1700 broke down as $1600 for one month’s unpaid rent and $100 for the recovery of the application filing fee. Further, the arbitrator ordered Mr. Merriman to retain the applicants’ entire security deposit of $800 in partial satisfaction of the monetary award. The Supreme Court of British Columbia dismissed the petition for a judicial review filed by the applicants against the arbitral decision. The Court of Appeal dismissed the appeal.

38651

L.S. v. P.L.

(Que.)

Family law — Divorce — Family assets

The parties were married in 1984 under the matrimonial regime of separation as to property. About two years later, the parents of the applicant, L.S., gave her a gift: they transferred to her the ownership of a duplex that had a net value of $116,883 at the time (a value of $126,300 with a $9,416 hypothec). The main floor of that immovable was used as the family residence. Over the years, the applicant and the respondent, P.L., increased the balance of the hypothec on the duplex in order to, among other things, make extensive renovations to it, purchase a secondary residence and meet the family’s needs. In April 2015, the applicant instituted an action for divorce. At the time the proceedings were commenced, the duplex had a net value of $256,537 (a value of $553,000 with a $296,463 hypothec).

In the Superior Court, Kear‑Jodoin J. granted the parties a divorce and ruled on the corollary relief. She found, among other things, that the applicant was entitled to a deduction corresponding to the net value of the duplex at the time of the gift, but she did not grant the applicant any deduction for the relative increase in value acquired since the gift. In the judge’s view, in light of the many hypothecary loans taken out to improve the immovable and to meet the family’s needs, it would be inappropriate to allow the applicant to claim more than the initial net value of the gift. The Court of Appeal dismissed the appeal, finding that the applicant had not identified any palpable and overriding error of fact or of law in the partition of the family patrimony.

38673

Stéphane Belval v. Her Majesty the Queen

(Que.)

Criminal law — Evidence — Assessment

During a search of the residence owned by the applicant, Stéphane Belval, more than a thousand fresh cannabis plants and more than a hundred pounds of dried cannabis were seized. At the time of the search, the police arrested the individual responsible for the electricity bill since Mr. Belval’s purchase of the house, who was present at the scene. In addition to the strong odour of cannabis detected upon approaching the lot, the police officers found various items used for production: bottles of fertilizer in the living room, pruning shears on the kitchen counter, grass trimmer and rake on the porch, additional air conditioning system, fans, carbon filters, barrels for watering, neon lighting and timer in the basement. The evidence showed that the basement of the house was entirely dedicated to cannabis production and that one of the bedrooms on the first floor, which was visible from the hall, was being used as a nursery for young cannabis plants.

Judge Leduc of the Court of Québec convicted Mr. Belval of possession of cannabis for the purpose of trafficking, production of cannabis and theft of electricity. She found that the uncontradicted evidence satisfied her, logically and beyond any reasonable doubt, that Mr. Belval had committed the offences. The Court of Appeal dismissed the appeal, holding that the guilty verdicts were based on the evidence and were reasonable, even disregarding the erroneous finding of fact that Mr. Belval had been seen locking the door of the residence when his co‑accused had left. Its intervention was not warranted. All of the evidence, considered collectively, was sufficient to support the conclusion that Mr. Belval was also involved in cannabis production, that he knew about it and that he had control over it.

38660

Attorney General of Canada v. Sherri Ann Morrissey

(F.C.)

Taxation — Income tax — Assessment — Canada Child Tax Benefit

Sherri Morrissey and Dennis Murphy share joint custody of LM. When Mr. Murphy applied to receive half of the Canada Child Tax Benefit (“CCTB”), the Canada Revenue Agency, on behalf of the Minister of National Revenue, concluded that Ms. Morrissey and Mr. Murphy had been shared-custody parents in respect of LM during the relevant taxation years. As a result, Ms. Morrissey and Mr. Murphy were each entitled to half of the CCTB for 2012 and 2013 and redeterminations were issued for those taxation years. Ms. Morrissey filed a Notice of Objection to the redeterminations. When the Minister confirmed the reassessments, Ms. Morrissey appealed further. Sommerfeldt J. dismissed Ms. Morrissey’s appeal, concluding that Ms. Morrissey and Mr. Murphy had met the definition of “shared-custody parents” at the relevant time. Ms. Morrissey appealed again. The Federal Court of Appeal allowed the appeal, set aside the decision of the Tax Court of Canada, allowed the appeal from the Minister’s reassessments of Ms. Morrissey’s 2012 and 2013 taxation years, and returned the matter to the Minister for redetermination in light of these reasons.