APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Jacques Chagnon, in his capacity as President of the National Assembly of Quebec v. Syndicat de la fonction publique et parapublique du Québec (SFPQ) (Que.)
Constitutional law – Parliamentary privilege – National Assembly of Quebec
Three security guards from the National Assembly of Quebec were dismissed by the applicant, the President of the National Assembly of Quebec, following an investigation that revealed that they were using a National Assembly camera to observe activities in the rooms of adjacent hotels. Since the guards were represented by the respondent, the Syndicat de la fonction publique et parapublique du Québec, a grievance was filed contesting their dismissal.
The President of the National Assembly of Québec raised a preliminary objection to the tribunal’s jurisdiction, arguing that he had acted in the exercise of two constitutional parliamentary privileges, namely the privilege over the management of employees and the privilege to eject strangers from the National Assembly and its precincts. The Quebec Superior Court allowed the motion for judicial review. The Court of Appeal allowed the appeal and set aside the Superior Court’s judgment.
Her Majesty the Queen in Right of British Columbia v. Philip Morris International, Inc. (B.C.)
Legislation – Interpretation – Civil procedure – Discovery
The applicant brought an action pursuant to the Act to recover tobacco-related health care costs from tobacco defendants. The legislation, which substitutes the normal rules of evidence and procedure for those specifically mandated by statute, was upheld by the Supreme Court of Canada as constitutional and not unduly interfering with judicial independence or the rule of law: British Columbia v. Imperial Tobacco Canada Ltd.,  2 S.C.R. 473, 2005 SCC 49. The Crown offered to provide access to anonymized health information databases to the tobacco defendants, provided they agreed to the terms of a Statistics Canada Agreement whereby the experts of all signatories would have the same access and would be subject to the same restrictions. While some tobacco defendants entered into the agreement, the respondent brought an application for an order that the applicant produce anonymized individual-level data from provincial health databases. The applicant resists on the basis that the databases contain private health care information about millions of BC residents and that its compellability is barred by s. 2(5)(b) of the Act.
The Supreme Court of British Columbia granted the respondent’s application. Declining to follow a subsequent, contradictory decision in Rothmans et al. v. Her Majesty the Queen in Right of the province of New Brunswick, 2016 NBQB 106 (leave to appeal to NBCA and SCC dismissed July 29, 2016, and January 26, 2017, respectively), the appellate court dismissed the appeal.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Syed Irbaz Shah v. Attorney General of Canada on Behalf of the United States of America (Alta.)
Criminal law – Extradition – Committal hearings
The applicant’s extradition was requested by the United States of America to stand trial on charges of laundering the proceeds of crime and conspiracy to launder the proceeds of crime. The Canadian Minister of Justice issued an Authority to Proceed against the applicant, listing trafficking in a controlled substance as the corresponding Canadian offence.
An extradition judge granted the respondent’s application for an order for the applicant’s committal into custody to await the Minister’s surrender decision. In doing so, she concluded that the evidence in the Records of the Case was reasonably capable of supporting an inference that the applicant was party to the offence of drug trafficking by allowing his bank account to be used by a supplier of drugs in Canada to receive payments from drug purchasers in the United States. The applicant’s appeal of his committal order was dismissed by the Court of Appeal of Alberta.
Kris Gowdy v. Her Majesty the Queen (Ont.)
Charter of Rights – Right to security of the person under s. 7 of the Charter
The applicant was convicted of child luring. The trial judge held that the unlawful and unreasonable public disclosure of the applicant’s medical information violated s. 7 of the Charter. The trial judge considered that an appropriate and just remedy for the infringement of the applicant’s s. 7 Charter right to security of the person was to impose a sentence outside the statutory limits prescribed by the Criminal Code, R.S.C. 1986, c. C-46. A conditional sentence of two years less one day followed by three years of probation was imposed. The applicant’s appeal from conviction was dismissed, but leave to appeal sentence was granted, the appeal was allowed and a sentence of imprisonment for one year was imposed. Accordingly, the Court of Appeal stayed the application of the sentence.
Guy Larochelle v. Denis Paquet (Que.)
Succession – Will – Validity of holograph will where notarial will exists
Following the death of the respondent’s spouse, the respondent had his legacies by particular title in his spouse’s holograph will recognized in the Superior Court. The deceased’s son opposed such recognition, arguing that the respondent was unworthy of inheriting. He asked the courts to find that the respondent had exercised undue influence over the testator. The Quebec Superior Court allowed the action. The Court of Appeal dismissed the appeal.
Jim Lysons v. Alberta Land Surveyors’ Association (Alta.)
Administrative law – Appeals – Standard of review
The Discipline Committee of the Alberta Land Surveyors’ Association found the applicant had engaged in unprofessional conduct by removing a survey monument without consulting with the surveyor who placed the monument, or obtaining the consent of the Director of Surveys, in breach of the Surveys Act, R.S.A. 2000, c. S-26. They imposed sanctions.
The Committee decision was appealed to the Council of the Alberta Land Surveyors’ Association. The Council agreed with the decision and sanctions imposed by the Committee. The Court of Appeal dismissed the appeal.
Jennifer Holley v. Nortel Networks Corporation, Nortel Networks Limited, Nortel Networks Global Corporation, Nortel Networks Technology Corporation, Nortel Networks Inc. (formerly Northern Telecom International), Nortel Networks Capital Corporation, Nortel Altsystems Inc., Nortel Altsystems International Inc., Xros, Inc., Sonoma Systems, Qtera Corporation, CoreTek, Inc., Nortel Networks Applications Management Solutions Inc., Nortel Networks Optical Components Inc., Nortel Networks HPOCS Inc., Architel Systems (U.S.) Corporation, Nortel Networks International Inc., Northern Telecom International Inc., Nortel Networks Cable Solutions Inc. and Nortel Networks (CALA) Inc., Ernst & Young Inc. in its capacity as Monitor, Official Committee of Unsecured Creditors of Nortel Networks, Nortel Networks Inc. (formerly Northern Telecom International), Nortel Networks Capital Corporation, Nortel Altsystems Inc., Nortel Altsystems International Inc., Xros, Inc., Sonoma Systems, Qtera Corporation, CoreTek, Inc., Nortel Networks Applications Management Solutions Inc., Nortel Networks Optical Components Inc., Nortel Networks HPOCS Inc., Architel Systems (U.S.) Corporation, Nortel Networks International Inc., Northern Telecom International Inc., Nortel Networks Cable Solutions Inc. and Nortel Networks (CALA) Inc., Ad Hod Group of Bondholders, Nortel Networks UK Limited, Nortel Networks S.A., Nortel Networks (Ireland) Limited, Nortel GmbH, Nortel Networks (Austria) GmbH, Nortel Networks AB, Nortel Networks BV, Nortel Networks Engineering Service Kft, Nortel Networks France S.A.S., Nortel Networks Hispania, S.A., Nortel Networks International Finance & Holding BV, Nortel Networks NV, Nortel Networks OY, Nortel Networks Polska Sp. z.o.o., Nortel Networks Portugal SA, Nortel Networks Romania SRL, Nortel Networks SpA, Nortel Networks Slovensko, s.r.o., and Nortel Networks, s.r.o., Canadian Former Employees and Disabled Employees Court Appointed Representatives, Nortel Canadian Continuing Employees Court Representatives (Ont.)
Canadian Charter of Rights and Freedoms – Constitutional law
Ms. Holley is an unsecured creditor of Nortel receiving long-term disability benefits. In 2009, a judge supervising the Nortel restructuring issued a representation order for the purpose of settling the claims of disabled beneficiaries. In 2010, certain stakeholders of Nortel entered into an Employee Settlement Agreement which dealt with, among others, disability claims. The Agreement was approved by the Superior Court. Ms. Holley did not opt out of the 2009 representation order within the specified time frame, and she was unsuccessful in her challenge to the approval of the Employee Settlement Agreement.
In 2015, protracted cross-border litigation over the allocation of the sale proceeds from the Nortel assets concluded. This paved the way for a settlement of the allocation dispute and a plan of compromise and arrangement (the “Plan”). Among others, the Plan provided for a compromise of all affected unsecured claims in exchange for a pro rata distribution of the cash assets of Nortel’s Canadian estate, and the full and final release and discharge of all such claims. The Plan was approved by an overwhelming majority of the affected unsecured creditors.
Ms. Holley objected to the Plan on the basis that it is unfair and unreasonable for the disabled beneficiaries and requested that $44 million be set aside and paid to these beneficiaries in full satisfaction of the amounts owing to them. She alleged that the Plan is contrary to ss. 7 and 15 of the Charter. The Court of Appeal dismissed the motion for leave to appeal.
Mohammed Al-Ghamdi v. Peace Country Health Region, Chief of the Commission & Tribunals of the Alberta Human Rights Commission (Alta.)
Administrative Law – Judicial Review
The Applicant, an orthopedic surgeon, filed a complaint with the Alberta Human Rights Commission (“AHRC”) alleging discrimination on various grounds on the part of the Peace Country Health Region where he had privileges to treat his patients. Following an investigation, the Director of the AHRC dismissed the Applicant’s complaint. The Applicant appealed to the Chief and Commission of Tribunals (“Chief Commissioner”) of the AHRC who declined to refer the complaint to a panel and confirmed the dismissal of the complaint. The Applicant then applied for judicial review of the Chief Commissioner’s decision. The Court of Appeal dismissed the appeal.
Godfred Kwaku Hiamey v. Conseil Scolaire de District Catholique Centre‑Sud, Association des enseignantes et des enseignants franco-ontariens, Nelligan O’Brien Payne LLP, Sack Goldblatt Mitchell LLP, Ontario College of Teachers, Ontario Labour Relations Board, Law Society of Upper Canada, Ontario Judicial Council, Human Rights Tribunal of Ontario (Ont.)
Administrative law – Boards and tribunals – Judicial review
The applicant Mr. Hiamey was employed as a teacher by the Conseil scolaire de district catholique Centre‑Sud in Toronto. Following three unsatisfactory performance evaluations, he was dismissed. The Conseil scolaire then filed a complaint with the Ontario College of Teachers concerning Mr. Hiamey’s incompetence. The College’s Discipline Committee found that Mr. Hiamey’s performance, though considered unsatisfactory, did not constitute incompetence, so there was no reason to revoke his certificate of qualification or to impose conditions or restrictions. Mr. Hiamey subsequently filed a series of complaints against his union and his lawyers as well as the Labour Relations Board and its Vice‑Chair, all of which were dismissed. He also filed complaints and applications for judicial review with the Human Rights Tribunal of Ontario, alleging that his dismissal and the refusal of the Conseil scolaire to rehire him were discriminatory on the ground of race or colour and that his union, his lawyers and the tribunals and boards that had heard the matter had also discriminated against him.
The Tribunal dismissed all the complaints, applications and requests made to it, including Mr. Hiamey’s requests for reconsideration of its previous decisions. The Ontario Divisional Court then dismissed Mr. Hiamey’s applications for judicial review of the Tribunal’s decisions. The Divisional Court considered it reasonable for the Tribunal to have found that there was no link between Mr. Hiamey’s dismissal and his allegations of discrimination, and no basis for those allegations. Next, Mr. Hiamey tried to appeal the Divisional Court’s decision to the Ontario Court of Appeal, but he exceeded the 15‑day limit set by the provincial statute. The Associate Chief Justice of the Court of Appeal dismissed Mr. Hiamey’s application for an extension of time to file his applications for leave to appeal from the Divisional Court’s decision. Finally, the Ontario Court of Appeal dismissed Mr. Hiamey’s application for judicial review of Hoy A.C.J.O.’s decision, finding that there was no evidence in the record confirming that Mr. Hiamey had intended to seek leave to appeal from the Divisional Court’s decision within the time limit.
Her Majesty the Queen v. Jermin Shivrattan, Stanley Silvera (Ont.)
Charter of Rights – Criminal law – Evidence
A telewarrant was issued. The affiant swore that he had reasonable and probable grounds to believe, and did believe, that cocaine and related material would be found in two condo units. The grounds for the affiant’s belief came almost exclusively from information provided to him by a confidential informant. At trial, the respondents unsuccessfully challenged the telewarrant alleging a breach of s. 8 of the Charter. The respondent Shivrattan was convicted of possession of a loaded restricted firearm with ammunition. The respondent Silvera was convicted of various firearms offences, various drug offences and possession of the proceeds of crime under $5000. The Court of Appeal held that the trial judge erred in law in refusing to allow the respondents to cross-examine the affiant and this error was fatal to the convictions. The Court of Appeal allowed the appeals, quashed the convictions and ordered new trials.
J.T. v. Her Majesty the Queen (Ont.)
Charter of Rights and Freedoms – Search and Seizure – Remedies
J.T., a youth, pleaded guilty to a robbery. She and two other youths pushed their victim to the floor of a subway car, stole her purse, punched her and kicked her. When arrested, J.T. was in possession of stolen property. At the police station, a stolen phone was found hidden under a co-accused’s underwear. The police determined that J.T. should be held in custody pending a show cause hearing. The officer-in-charge authorized strip searching J.T. Two female officers required J.T. to remove her clothing in stages. J.T. was never fully undressed. The search took place in a private room and lasted about two minutes. No physical contact was made other than to touch J.T.’s hair. While undressed from the waist down, J.T. was directed to squat and cough three times while an officer viewed her vagina and anus. Before sentencing, J.T. applied for a stay of proceedings. The applications judge found the strip search reasonable in the circumstances but held that the use of the squat and cough technique breached ss. 7 and 8 of the Charter. She denied a stay of proceedings and reduced J.T.’s sentence as a remedy for the Charter breach. The Court of Appeal dismissed the appeal.
Angleland Holdings Inc., Nederland Holdings Inc., John English and Paradise Beach resorts Inc. v. Gregory N. Harney law Corporation dba, Shields Harney and Gregory N. Harney, as solicitor (B.C.)
Civil procedure – Law of professions – Taxation of solicitor’s account by master
Mr. Harney and his law firm represented the clients, Mr. English and the three corporations, in a foreclosure proceeding and an action in trespass. In the foreclosure proceeding, the parties had an initial retainer of $10,000 to commence work on the file, but reached no firm agreement on the fees. Mr. Harney succeeded in obtaining a stay of an order for sale of the clients’ property. Mr. Harney also identified a lender who expressed interest in refinancing the property, but Mr. English declined the terms offered. The action for trespass involved a claim against BC Hydro for damage to an old logging bridge across a stream, while BC Hydro was attempting to access lands near the clients’ property. BC Hydro offered to Mr. English $127,000 in settlement, but he contended that his claim was worth significantly more.
Failing to reach an agreement on the fee arrangement, the relationship between the clients and the lawyer soured. At one point, Mr. Harney sent Mr. English a bill for over $1 million stamped “draft”, which he later admitted was never intended to be an account. In October 2011, Mr. Harney rendered his account in the amount of $536,224.10. A Master of the British Columbia Supreme Court, sitting as Registrar, taxed the account and reduced it to $264,217.54. The Court of Appeal dismissed the appeal.
St. John's Dockyard Limited v. City of St. John's (N.L.)
Municipal law – Taxation – Property assessments
St. John’s Dockyard Limited sought to appeal the assessment for taxation purposes that it received from the City of St. John’s. The City refused to accept the notice of appeal because the Dockyard had not provided information requested by the City’s assessor. The Dockyard then applied to a judge of the Supreme Court of Newfoundland and Labrador, Trial Division, for declarations that certain property included in the City’s assessment was not assessable as real property, and that the assessment should be reduced by a specified amount. The jurisdiction of the Trial Division judge to hear the application and issue the requested declarations was not contested by the City.
The Supreme Court of Newfoundland and Labrador, Trial Division, held that the property in question was not real property assessable under the Act, and issued a declaration that the assessment of the items in question for the taxation year 2016 was ultra vires the City of St. John’s. The Court of Appeal allowed the City’s appeal, finding the trial judge erred by exceeding the jurisdiction of the court under the Assessment Act 2006, SNL 2006, c. A-18.1.
Justin Carl Wong v. Minister of Justice (B.C.)
Canadian Charter of Rights and Freedoms – Criminal law – Extradition
The United States seeks the extradition of Justin Wong, a Canadian citizen, for prosecution on charges of sexual exploitation of minors residing in the United States; conduct corresponding to the Canadian offence of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code, R.S.C. 1985, c. C-46.
The extradition judge of the B.C. Supreme Court dismissed Mr. Wong’s applications for further disclosure and for a stay of proceedings, ordering his committal into custody to await surrender to the United States. The Minister of Justice subsequently directed Mr. Wong to be surrendered to the United States for prosecution. The B.C. Court of Appeal dismissed Mr. Wong’s application for judicial review of the Minister’s surrender order, as well as his appeal from the order of committal.
Cameron Bell v. Ernest Wigmore (B.C.)
Limitation of actions – Torts – Negligence – Professional liability
In November 2006, Mr. Bell had an ear infection and saw Dr. Wigmore. Dr. Wigmore performed a syringing procedure on Mr. Bell’s left ear and perforated his eardrum in the process. Mr. Bell had to have an emergency operation and two further surgeries, in 2008 and 2009, respectively, to repair his eardrum. Mr. Bell’s treating physicians told him that the injury was likely due to the syringing procedure, and that the procedure should not have been performed. Despite some initial improvement, Mr. Bell continued to suffer tinnitus, dizziness and pain, had trouble with his daily activities, had difficulty finding employment, and had to give up driving. By 2010, Mr. Bell developed vertigo and a Eustachian tube dysfunction, and in 2011, he learned that his injury would likely be permanent.
Mr. Bell commenced his action against Dr. Wigmore in 2012, almost six years after the syringing procedure in question. Dr. Wigmore applied to have the action dismissed on the grounds that it was barred by the former Limitation Act, R.S.B.C. 1996, c. 266. The Supreme Court of British Columbia dismissed the action. The Court of Appeal dismissed the appeal.
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