APPLICATIONS FOR LEAVE TO APPEAL GRANTED
38521 Atlantic Lottery Corporation Inc. - Société des lotteries de L'Atlantique, et al. v. Douglas Babstock, et al. NL Torts — Duty of care — Causation
38534 Uber Technologies Inc., Uber Canada, Inc., Uber B.V., Rasier Operations B.V. v. David Heller ON Employment law — Labour standards — Contracts
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
38429 Timothy Mark Rempel v. Her Majesty the Queen AB Criminal law — Evidence
38504 Sheena Cuthill v. Her Majesty the Queen AB Criminal law — Evidence
38464 Hampton Securities Limited v. Christina Nicole (Niki) Dean ON Torts — Defamation
38533 Mikel Golzarian v. Association des policières et policiers provinciaux du Québec QC Labour relations — Union
38486 Geophysical Service Incorporated, et al. v. Murphy Oil Company Ltd., et al. AB Judgments and orders — Summary judgment
38485 Apotex Inc. v. Eli Lilly and Company, Eli Lilly Canada Inc. FC Intellectual property — Patents
38443 Aviva Insurance Company of Canada v. Évêque catholique romain de Bathurst NB Insurance — Extent of risk
38414 Ville de Lévis c. Albertine Leclerc QC Constitutional law — Interjurisdictional immunity
38538 A.J., D.K. v. British Columbia (Director of Child, Family and Community Service) BC Charter of Rights — Discrimination
38367 EJB v. Her Majesty the Queen AB Charter of Rights – Cruel and unusual punishment
38528 Yves Montplaisir c. Jacques Mondou, et al. QC Civil procedure — Abuse of process
38396 Wood Group Mustang (Canada) Inc., formerly IMV Projects Inc., et al. v. Canadian Natural Resources Limited, et al. AB Torts — Breach of contract
38488 Bitupu Mufuta v. Her Majesty the Queen AB Criminal law — Evidence
38506 P.S. Knight Co. Ltd., Gordon Knight v. Canadian Standards Association FC Intellectual property law — Crown Copyright
38527 James Cyrynowski v. Alberta Human Rights Commission (Chief of the Commission and Tribunals) AB Human Rights — Discriminatory practices
38494 Darrell Wayne Volden v. Her Majesty the Queen MN Criminal law
38525 Timothy Cyril Sullivan v. Ontario College of Teachers ON Administrative law
38473 Cynthia Rebecca Delores LeRoy v. Century Services Corp. BC Contracts — Commercial contracts — Formation
38522 Benoît Bissonnette v. Her Majesty the Queen QC Criminal law — Charge to jury
38503 Steven Kerzner v. American Iron & Metal Company Inc. ON Employment law — Labour standards
38517 2099232 Ontario Inc. v. Giuseppe Di Millo ON Sale of land — Property — Real Property
APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Atlantic Lottery Corporation Inc. — Société des lotteries de L'Atlantique v. Douglas Babstock, Fred Small — and between — VLC, Inc., IGT-Canada Inc., International Game Technology, Spielo International Canada ULC, Tech Link International Entertainment Limited v. Douglas Babstock, Fred Small — and — Bally Gaming Canada Ltd. and Bally Gaming Inc. (N.L.)
Torts — Duty of care — Causation — Contracts
The Atlantic Lottery Corporation (“ALC”) is a corporation constituted by the governments of the four Atlantic Provinces to conduct lotteries and other gambling activities on behalf of the Crown. Douglas Babstock and Fred Small brought an application for certification as representatives of a class action against ALC and several other third party suppliers to ALC. The proposed class action alleged harm by video lottery terminals which offered line games similar to slot machines. The seven causes of action included (amongst others) breach of contract, negligence, unjust enrichment, and waiver of tort. In two separate decisions, the Supreme Court of Newfoundland and Labrador determined that it was not plain and obvious that any of the seven causes of action would fail. The judge determined that line games played on video lottery terminals (“VLTs”) could be similar to “three‑card monte” (which is prohibited under the Criminal Code without exception). Accordingly, the judge certified the class action. A majority of the Court of Appeal of Newfoundland and Labrador struck causes of action under the Competition Act, R.S.C., 1985, c. C‑34 and the Statute of Anne, 1710 (Gaming Act, 1710) 9 Anne cap. XIV. The majority concluded that disgorgement is an uncertain area of law and it was not clear that arguments on this basis were doomed to fail. The majority also determined that line games on VLTs might be similar to “three‑card monte” and could have a chance of succeeding. In a dissenting opinion, Welsh J.A. would have allowed the appeal, set aside the certification order, and struck the claim in its entirety.
Uber Technologies Inc., Uber Canada, Inc., Uber B.V., Rasier Operations B.V. v. David Heller (Ont.)
Employment law — Labour standards — Contracts — Private international law — Arbitration
The applicants, Uber Technologies Inc., Uber Canada Inc., Uber B.V., and Rasier Operations B.V. are part of a group of companies that have come to be known collectively and individually as Uber. Uber has developed computer software applications for GPS‑enabled smartphones for transportation and restaurant delivery. David Heller, a resident of Ontario, has been licensed to use the Uber driver app (UberEATS) to deliver food in Toronto since February 2016. He has never used the app to provide personal transportation services. In order to use the driver app, Mr. Heller had to meet certain criteria and accept Uber’s licencing agreement. That agreement states that it is governed by the law of the Netherlands. It includes an arbitration clause stating that disputes connected to the agreement shall be resolved by arbitration in Amsterdam. Mr. Heller brought a proposed class action on behalf of Uber drivers alleging that they were employees of Uber and entitled to benefits under Ontario’s Employment Standards Act, SO 2000, c. 41 (“The ESA”). The Ontario Superior Court of Justice granted a motion brought by Uber to stay Mr. Heller’s action in favour of arbitration. The motion judge determined that Mr. Heller was unable to demonstrate any exceptions under the Arbitration Act, SO 1991, c. 17 — including unconscionability — warranting a denial of Uber’s stay motion. The Court of Appeal for Ontario allowed the appeal on the basis that the arbitration clause amounted to an illegal contracting out of the ESA and was thus invalid. It determined that it was for the court, not an arbitrator, to determine whether a stay was warranted. The court of appeal concluded that the arbitration clause was unconscionable at common law and grossly unfair.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Timothy Mark Rempel v. Her Majesty the Queen (Alta.)
Criminal law — Evidence — Hearsay — Spousal communication
Mr. Rempel, his wife and his brother were charged with the first degree murder of Ryan Lane, the father of his wife’s daughter. Police later determined that Mr. Rempel lured Mr. Ryan to a gas station where he was last seen getting into a truck driven by Mr. Rempel’s brother. When the truck drove away, Mr. Rempel followed in a Jeep. Months later, Mr. Lane’s ashes, bone fragments and cell phone were found in a burn barrel at a gravel pit where Mr. Rempel and his brother had once worked. Mr. Lane’s class ring was found nearby. Mr. Lane’s DNA was found in the truck and his blood was found in the Jeep. Using a production order, police recovered text messages including messages sent and received by Mr. Rempel. Several texts suggest a plan to kidnap and kill Mr. Lane. The trial judge admitted the text messages into evidence. While awaiting trial, Mr. Rempel’s brother wrote a letter to Mr. Rempel. The trial judge refused to admit the letter into evidence. A jury convicted Mr. Rempel of first degree murder. The Court of Appeal dismissed an appeal.
Hampton Securities Limited v. Christina Nicole (Niki) Dean (Ont.)
Torts — Defamation — Defence of qualified privilege
The applicant, Hampton Securities Limited is a registered investment firm employing proprietary traders who buy and sell securities on its behalf. The respondent, Ms. Christina Nicole Dean joined Hampton as a proprietary trader in March 2008. In April 2009, Ms. Dean was demanded to increase her account reserve by $50 000.00 before engaging in any further trading. When she did not show up at the office the next day, she was terminated. Hampton’s reason for demanding the increase was that at the time, her accumulated losses exceeded her reserve. The day after the employment relationship ended, Hampton filed a notice of termination (NOT) on the National Research Database (NRD) maintained by its regulator, the Investment Industry Regulatory Organization of Canada. Hampton indicated in the NOT that Ms. Dean was terminated because she failed to follow trading desk policies and procedures and because of unauthorized trading resulting in losses. A few months later, Hampton commenced an action claiming that Ms. Dean owes Hampton money arising out of losses she incurred as a trader. In counterclaims, Ms. Dean claimed damages for constructive dismissal. She contended that she resigned after Hampton tried to alter her contract. Further, Ms. Dean claimed among other things, damages for defamation based on statements filed by Hampton in the NOT. The Superior Court dismissed Hampton’s action against Ms. Dean and granted in part Ms. Dean’s counterclaims against Hampton. The court declared that Ms. Dean resigned from her employment and awarded damages for defamation and punitive damages. The court also ordered Hampton to file a notice of correction of the NRD in a form satisfactory to both parties. Finally, the court dismissed Ms. Dean’s claim for minimum wages for those months in which Hampton did not pay her any income and her claim for Wallace damages (moral damages). The Court of Appeal dismissed the appeal.
Sheena Cuthill v. Her Majesty the Queen (Alta.)
Criminal law — Evidence — Hearsay — Spousal communication
Sheena Cuthill, her husband and her brother‑in‑law were charged with the first degree murder of Ryan Lane, the father of Ms. Cuthill’s daughter. Police later determined that Ms. Cuthill’s husband lured Mr. Ryan to a gas station where he was last seen getting into a truck driven by Ms. Cuthill’s brother‑in‑law. When the truck drove away, her husband followed in a Jeep. Months later, Mr. Lane’s ashes, bone fragments and cell phone were found in a burn barrel at a gravel pit where the co‑accused men had once worked and his class ring was found nearby. Mr. Lane’s DNA was found in the truck and his blood was found in the Jeep. Using a production order, police recovered text messages including messages sent and received by Ms. Cuthill. Several texts suggest a plan to kidnap and kill Mr. Lane. The trial judge admitted the text messages into evidence. A jury convicted Ms. Cuthill of first degree murder. The Court of Appeal dismissed an appeal.
Mikel Golzarian v. Association des policières et policiers provinciaux du Québec (Que.)
Labour relations — Union — Duty of representation
The applicant, Mikel Golzarian, who had been hired as an officer of the Sûreté du Québec in 1992, was on sick leave beginning in 1997. In 1998, he filed a complaint with the Commission des droits de la personne et de la jeunesse, which concluded that he had been discriminated against and proposed measures of redress, but the Sûreté du Québec refused to implement them. In 2002, the Sûreté du Québec terminated Mr. Golzarian’s employment. His union, the respondent Association des policières et policiers provinciaux du Québec (“APPPQ”), submitted a grievance to contest Mr. Golzarian’s dismissal and referred it to arbitration. Mr. Golzarian’s grievance was dismissed in 2004 after he refused to appear at the arbitration hearing. Mr. Golzarian had chosen to go to court to assert his claims against his employer. His actions were unsuccessful. In 2003, Mr. Golzarian brought an action in damages against the respondent for breach of its duty of representation. The Superior Court dismissed that action. It concluded that, given M. Golzarian’s half‑hearted cooperation, he had not shown that the union had committed a fault against him. The Court of Appeal dismissed Mr. Golzarian’s appeal. It held that there was ample support in the evidence for the trial judge’s findings and that the judge had committed no error in determining that the APPPQ had not breached its duties.
Geophysical Service Incorporated v. Murphy Oil Company Ltd. — and between — Geophysical Service Incorporated v. Encana Corporation (Alta.)
Judgments and orders — Summary judgment — Proper test for summary dismissal
The respondent, Murphy Oil Company Ltd. and the respondent, Encana Corporation were two companies that the applicant, Geophysical Service Incorporated (“GSI”) sued for the improper use of its seismic materials.
In its amended statement of claim, GSI plead breach of contract, copyright infringement, breach of confidence and unjust enrichment. Encana contended that there was no merit to GSI’s claims and, in any event, they were statute‑barred by the Limitations Act, RSA 2000, c L‑12. GSI applied for summary judgment in respect of its Accessed Data Claim and asked that the other claims go to trial. Encana responded and applied for summary dismissal of all of GSI’s claim. The parties had mixed success. The chambers judge granted GSI summary judgment of the liability portion of the Accessed Data Claim but remitted the question of damages to trial. Encana succeeded in having the other remaining claims summarily dismissed. A majority of the Court of Appeal allowed Encana’s appeal and dismissed GSI’s appeal on the damages issue.
GSI claimed damages from Murphy for breach of contract, breach of copyright, breach of confidence, conversion, unjust enrichment, negligent misrepresentation and interference with GSI’s contractual relations with others. GSI also sought various accountings, injunctions and declaratory relief. Murphy defended contending that there was no merit to GSI’s claims and, in any event, they were statute‑barred by the Limitations Act, RSA 2000, c L‑12. Murphy succeeded in its application for summary dismissal. The chambers judge dismissed GSI’s claim. A majority of the Court of Appeal would have dismissed the appeal.
Aviva Insurance Company of Canada v. Évêque catholique romain de Bathurst (N.B.)
Insurance — Extent of risk — Intentional acts
Following the sexual abuse of youth perpetrated by various priests in the respondent Diocese of Bathurst between the late 1950s and the early 1980s, and the criminal conviction of two of them, claims were made against the Diocese. The Diocese’s insurer, the applicant Aviva Insurance Company of Canada participated in one settlement and denied coverage for subsequent cases. The Diocese responded by setting up a concilitation system that would resolve the claims, a parallel system to the conventional procedure that was also used by other claimants. The Diocese paid out over $7 million before commencing an action against Aviva for breach of contract. The trial judge found that the conciliation claims were not covered by the Diocese’s insurance policies as they were voluntary payments, whereas the claims resolved by the traditional process were found to be covered by those same policies. The Court of Appeal found that Aviva is responsible for both the conciliation claims and those resolved by the traditional process.
Apotex Inc. v. Eli Lilly and Company, Eli Lilly Canada Inc.
Intellectual property — Patents — Medicines — Infringement — Damages
The respondents (collectively, “Lilly”) own eight Canadian patents for the processes related to the making of a key intermediate compound required to make the antibiotic, cefaclor, a drug used to treat certain bacterial infections. In 1993, Apotex filed a Notice of Compliance (“NOC”) submission for its generic version of cefaclor with Health Canada. Lilly’s application for an order prohibiting Apotex from selling its cefaclor product in Canada was dismissed. Apotex obtained its NOC for Apo‑cefaclor in January 1997 and began selling it in Canada. Apotex had two suppliers of cefaclor: South Korean Kyong Bo Chemical Ltd. (“Kyong Bo”) and Lupin Laboratories Ltd. (“Lupin”) of India. Apotex received batches of commercial Kyong Bo and Lupin 1 cefaclor. In 1998, Apotex received a shipment of “Lupin 2 cefaclor”.
Lilly instituted an action for infringement. At the liability trial, the court found that Lilly patents were valid and infringed by Apotex as a result of its importation and use of the Kyong Bo and Lupin 1 cefaclor. The Lupin 2 cefaclor was not found to be infringing. Lilly then elected to proceed by way of a trial on the issue of damages. The Federal Court ordered Apotex to pay Lilly $31,234,000.00 in damages pursuant to s. 55(1) of the Patent Act, R.S.C. 1985, c. P‑4. Lilly was also awarded $75,040,649.00 in prejudgment compound interest. Apotex appealed. The Court of Appeal upheld the award of s. 55 damages but remitted the award of compound interest to the trial judge for reconsideration.
Ville de Lévis v. Albertine Leclerc — and — Attorney General of Quebec, Attorney General of Canada (Que.)
Constitutional law — Interjurisdictional immunity — Federal aeronautics power — Skydiving
The respondent, Ms. Leclerc, owned three lots in the applicant municipality that were limited to agricultural uses under the applicable zoning by‑law. Ms. Leclerc operated an aerodrome on the lots and leased part of the lots for the operation of a skydiving centre. In 2012, the applicant municipality issued several statements of offence against Ms. Leclerc for violating the applicable zoning and building by‑laws. She was charged, among other things, with engaging in an unauthorized use, namely [translation] “skydiving or a skydiving training centre”, and building a second aerodrome without first obtaining the building permit required for that type of structure. Relying on the doctrine of interjurisdictional immunity, Ms. Leclerc took the view that the municipal by‑laws could not be set up against her. She argued, in other words, that the defendant municipality could not regulate her activities because they fell within the core of the federal aeronautics power. The Municipal Court found the doctrine inapplicable in the circumstances on the ground that skydiving was not within the core of the federal power absent any precedent to that effect. The Superior Court overturned that conclusion and allowed the appeal in part. In its view, there was a precedent from the Alberta Court of Appeal that made it possible to apply the doctrine to skydiving. The Court of Appeal rejected the Superior Court’s reasoning concerning the existence of a precedent, but it nonetheless found the doctrine applicable to the [translation] “new field” of skydiving. It was of the view that skydiving is an activity that makes use of airspace and cannot be separated from aerial navigation as a whole. By prohibiting it, the applicant municipality was impairing a power that was held exclusively by Parliament. The Court of Appeal declared the provision of the zoning by‑law inapplicable, but not the provision of the permits by‑law. In the latter case, it found that compliance with building standards does not encroach on the federal power in the sense of a constitutional impairment.
A.J., D.K. v. British Columbia (Director of Child, Family and Community Service) (B.C.)
Charter of Rights — Discrimination — Status of persons — Child protection
The applicants are the biological parents of the child who was born in 2016. The Ministry of Children and Family Development received a complaint about domestic violence regarding the parents. They decided to sign a voluntary care agreement and the child was placed with a foster family. An interim order was then made placing the child in the custody of the Director with supervised access for the parents. The parents refused to participate in the court‑ordered parental assessment. The Director had concerns about mental health, domestic violence, the parents’ unwillingness to follow medical directions for the child and their inability to cooperate with those who could support them. The trial judge concluded that the child was in need of protection and placed the child in the continuing custody of the Director. That decision was upheld on appeal. A single judge of the Court of Appeal refused to grant the parents leave to appeal. The Court of Appeal declined to vary that order.
Timothy Edward Leahy v. Law Society of Ontario (Ont.)
Charter of Rights — Freedom of expression — Right to life, liberty and security of person
The applicant’s licence to practice law in Ontario was revoked on December 10, 2014 and has not been reinstated. He did not appeal his disbarment but continued to hold himself out as a lawyer entitled to practice law in Ontario on various websites, in other media and through corporations that he controlled. The applicant maintained that he was entitled to practice law, particularly in the area of immigration and to appear in the Federal Court. The Law Society of Ontario obtained permanent injunctions to preclude the applicant from continuing to practice law in Ontario. Those decisions were upheld on appeal.
EJB v. Her Majesty the Queen
Charter of Rights — Cruel and unusual punishment — Criminal law — Sentencing — Mandatory minimum sentence
EJB was acquitted of the offence of sexual exploitation at trial in proceedings commenced by indictment. The Court of Appeal substituted a conviction and remitted the matter back to the trial judge for sentencing. Section 153(1.1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, sets out a minimum punishment of imprisonment for one year for the offence of sexual exploitation if it is prosecuted by indictment. The Court of Queen’s Bench held that the mandatory minimum sentence violates s. 12 of the Charter of Rights and Freedoms and cannot be justified under s. 1 of the Charter. She declared the mandatory minimum sentence of no force or effect and imposed a sentence of two years less one day to be served conditionally. The Court of Appeal allowed an appeal and substituted a sentence of four years imprisonment less credit for time served.
Yves Montplaisir v. Jacques Mondou, Caisse Desjardins de Bois-Franc-Bordeaux-Cartierville
— and — McGill immobilier Inc., Via Capitale du Mont-Royal, Remax du Cartier bureau Outremont, Groupe Immobilier Londono Inc. (Que.)
Civil procedure — Abuse of process
Mr. Montplaisir owned two rental triplexes in Montréal. The Caisse Desjardins de Bois‑Franc-Bordeaux‑Cartierville (“Caisse”) was the hypothecary creditor for one of the triplexes. Mr. Mondou was Mr. Montplaisir’s notary. On the recommendation of his doctor, Mr. Montplaisir decided to sell his triplexes. Rather than putting them up for sale in the condition they were in, he set about renovating them and converting them into undivided co‑ownership using a “domino” strategy that the Caisse’s representatives allegedly suggested to him in the spring of 2010. Mr. Montplaisir allegedly also sought advice from Mr. Mondou about the domino strategy suggested by the Caisse. That approach did not work, and Mr. Montplaisir had to change his approach so that he could eventually sell his six units. However, he sold them at a lower price than he expected. On December 9, 2015, he brought proceedings against the defendants because of the damage he had allegedly suffered during his renovation project. The defendants sought to have the proceedings against them dismissed under art. 168 (exception to dismiss) and art. 51 (abusive pleading) of the Code of Civil Procedure.38396 Wood Group Mustang (Canada) Inc., formerly IMV Projects Inc. v. Canadian Natural Resources Limited
— and between — Wood Group Mustang (Canada) Inc., formerly IMV Projects Inc. v. Canadian Natural Resources Limited — and between — Wood Group Mustang (Canada) Inc., formerly IMV Projects Inc. v. Canadian Natural Resources Limited (Alta.)
Torts — Breach of contract — Contributory Negligence
The respondent, Canadian Natural Resources Limited (“CNRL”) decided to build a buried emulsion pipeline that would carry extra‑hot emulsion between two plants. CNRL retained the applicant, Wood Group Mustang (Canada) Inc., formerly IMV Projects Inc. (“IMV”) to provide engineering advice on the design and construction of the pipeline. Two other companies were retained to supply the pipe and to install it. The pipeline failed after approximately three months of operations. The evidence disclosed that each of CNRL, IMV and the two other companies were in some respect negligent, resulting in the eventual failure of the pipeline. On the eve of trial, CNRL entered into Pierringer settlement agreements with the two other companies and the action proceeded against IMV only.
The trial judge concluded that each of CNRL, IMV and the two companies was negligent in some respects. The trial judge attributed 50 percent responsibility to CNRL, 20 percent to IMV, 25 percent to the pipe supplier and 5 percent to the pipe installer. Judgment against IMV was granted in the amount of $9,085,040.00. The Court of Appeal allowed the appeal in part and reapportioned liability as follows: 25 percent to CNRL, 35 percent to IMV, 35 percent to the pipe supplier and 5 percent to the pipe installer. Accordingly, judgment was granted against IMV in the amount of $15,898,821.75.
Bitupu Mufuta v. Her Majesty the Queen
Criminal law — Evidence
The charges against the applicant arose from alleged historical assaults on the complainant. The applicant was the complainant’s tutor when the complainant was a student. The applicant testified and denied that he tutored the complainant and denied that he sexually touched or threatened the complainant. The trial judge disbelieved the applicant’s evidence. The trial judge accepted the complainant’s evidence and found that his identification of the applicant was reliable. The applicant was convicted of sexual interference and uttering a threat to cause death. His conviction appeal was dismissed.
Anatoly Kimaev v. Her Majesty the Queen (Ont.)
Charter of Rights — Presumption of innocence
The applicant was charged with assault. The trial judge was satisfied by the totality of the evidence that the applicant was the person who spat on Ms. May. The applicant was convicted of assault and his conviction appeal was dismissed. The applicant’s application for leave was dismissed by the Court of Appeal.
P.S. Knight Co. Ltd., Gordon Knight v. Canadian Standards Association (F.C.)
Intellectual property law — Copyright — Infringement — Crown Copyright
Canadian Standards Association (“CSA”) is a federal not‑for‑profit corporation engaged in developing, testing, and certifying voluntary electrical standards. One of the most important standards is the CSA Electrical Code, which sets out safety standards for installation and maintenance of electrical equipment in Canada. The CSA Electrical Code has been incorporated by reference into several regulations and statutes for the installation and maintenance of electrical equipment. Copyright in the 2015 CSA Electrical Code was registered in April of 2015 in favour of the CSA. P.S. Knight Co. is a commercial competitor of the CSA. It has published the Electrical Code Simplified since the 1960s, including references with attribution to the CSA Electrical Code. A strong working relationship between the two groups began to deteriorate after a 2004 offer from the CSA to purchase Knight Co was rejected. In 2010 the CSA wrote to Knight Co. to inform it that any licence that may have existed was terminated. In 2016, Knight Co. reproduced and threatened to distribute a complete and identical copy of the 2015 version of the CSA Electrical Code at one-third the price the CSA charged. As a result, the CSA initiated an application to the Federal Court for copyright infringement. The Federal Court determined that copyright subsists in the 2015 Electrical Code and was owned by CSA. It concluded that Knight Co. infringed CSA’s copyright. A majority of the Federal Court of Appeal agreed with the Federal Court judge with a dissenting opinion on Crown prerogative.
James Cyrynowski v. Alberta Human Rights Commission (Chief of the Commission and Tribunals) (Alta.) (Civil)
Human Rights — Discriminatory practices
In May 2014, the mother of a young child placed an ad on Kijiji seeking someone to care for him every second Saturday. She specified that she preferred an older woman with experience. The applicant responded to the ad but was not accepted for the position. The applicant filed a human rights complaint, alleging discrimination in the area of applications and advertisements regarding employment under s. 8 of the Alberta Human Rights Act, R.S.A. 2000, c. A‑25.5. The Director dismissed the compliant on the basis that this was a private relationship, not subject to the Act. And that it was a reasonable bona fide occupational requirement (“BFOR”) that parents must have the final say in who will babysit their children. The applicant’s request for a review of that decision was dismissed by the Chief of the Commission and Tribunals. His application for judicial review of that decision was dismissed. The Court of Appeal dismissed his appeal.
Darrell Wayne Volden v. Her Majesty the Queen (Man.)
On the night of the complainant’s birthday she became extremely intoxicated and went to bed at her uncle’s home. She was fully clothed and assisted by her girlfriend. Sometime later, the applicant got into bed with her. When the complainant awoke the next morning, the complainant alleged that the applicant had sexually assaulted her. The applicant was convicted of sexual assault, and his conviction appeal was dismissed.38525 Timothy Cyril Sullivan v. Ontario College of Teachers (Ont.) Administrative law The applicant is a teacher. He engaged in conduct that was determined to be professional misconduct by the Discipline Committee of the Ontario College of Teachers. The applicant was penalized for his conduct. The applicant’s appeal was dismissed. The applicant’s motion for leave to appeal was also dismissed.
Cynthia Rebecca Delores LeRoy v. Century Services Corp. (B.C.)
Contracts – Commercial contracts – Formation – Performance
Foreclosure proceedings have been ongoing by Century Services Corp. against Cynthia Rebecca Delores LeRoy since November of 2008. Ms. LeRoy provided the mortgage for her home, together with a limited recourse guarantee, as security for the indebtedness of Ted LeRoy Trucking Ltd (“TLT”) to Century. The principal of TLT was Ms. LeRoy’s husband, Ted LeRoy. TLT’s indebtedness to Century arose under a loan agreement. Ms. LeRoy’s liability was limited to $2 million from the date of demand plus interest, costs, and expenses payable under the guarantee and mortgage. Century’s recourse under the guarantee was limited to realizing on Ms. LeRoy’s home. TLT defaulted on its obligations to Century. Century issued a demand for payment to TLT and a demand to Ms. LeRoy under the guarantee. Even after liquidation, TLT remained indebted to Century for more than $2 million. The Supreme Court of British Columbia concluded that Century Services Corp. had fraudulently misrepresented their post-default fees in negotiating the guarantee and as a result concluded that the guarantee (and mortgage) was unenforceable. The Court of Appeal for British Columbia allowed the appeal on the basis that no representation had been made by Century to Ms. LeRoy. Applying lender disclosure rules, the court of appeal determined that post-default fees were immaterial to whether Ms. LeRoy would have signed the guarantee. It concluded that a reasonable person in her position would not have been affected by knowledge of the differing fees and ordered the resumption of foreclosure proceedings.
Benoît Bissonnette v. Her Majesty the Queen
Criminal law — Charge to jury — Appeals
The Crown charged Mr. Bissonnette with aiding an official of Ville de Montréal (“city”) to use his position to obtain commissions from companies that provided the city with computer services and to misappropriate funds. The Crown also alleged that Mr. Bissonnette had conspired with that official to misappropriate funds from the city.
The jury acquitted Mr. Bissonnette of the counts of breach of trust and conspiracy. The Court of Appeal ordered a new trial on both of those counts because of problems it identified with the charge to the jury and the review of the evidence at trial.
2099232 Ontario Inc. v. Giuseppe Di Millo (Ont.)
Sale of land — Property — Real Property
The applicant, 2099232 Ontario Inc. (“232 Inc.”), purchased land from the respondent, Mr. Di Millo, in 2012. The agreement of purchase and sale (the “agreement”) contained an option for Mr. Di Millo to repurchase the land on certain building conditions not being met by 232 Inc., as the sale was effected in the context of a greater subdivision plan. The agreement also precluded 232 Inc. from selling, assigning or transferring its interest in the land without the prior written consent of Mr. Di Millo. After being given two extensions, 232 Inc. had still not commenced building on the land and Mr. Di Millo sought to exercise his option under the agreement. At that time, he learned that 232 Inc. had placed two mortgages on the land without his consent. Mr. Di Millo purchased one of the two mortgages, in part as evidence of his ability to close. He then applied for specific performance of his option to repurchase the land. The Superior Court dismissed Mr. Di Millo’s application, having found that he did not meet the timing requirements of the option to repurchase. The Court of Appeal allowed Mr. Di Millo’s appeal and ordered specific performance of the option to repurchase.
Steven Kerzner v. American Iron & Metal Company Inc. (Ont.)
Employment law — Labour standards — Contracts — Release agreements
Steven Kerzner was an employee and one‑third owner of Bakermet Inc. when it was sold in 2008 to ArcelorMittal. As part of the share purchase agreement, Mr. Kerzner signed a release in favour of Bakermet and its successors. Two subsequent employment agreements were signed by Mr. Kerzner in 2011 and 2014. American Iron & Metal Company Inc (“AIM”) bought out ArcelorMittal and was assigned Mr. Kerzner’s employment contract. In 2015, AIM terminated Mr. Kerzner’s employment with one week’s working notice. Shortly after his termination, Mr. Kerzner found a new job with a competing company. In accordance with the 2014 agreement, Mr. Kerzner was offered six months’ salary and continuation of benefits. Mr. Kerzner brought a wrongful dismissal action seeking 24 to 30 months’ pay in lieu of notice, based on 35 years of continuous employment with AIM and its predecessors. AIM counterclaimed for damages based on Mr. Kerzner’s alleged breach of the restrictive covenants and fiduciary duty in the 2014 agreement. The Ontario Superior Court of Justice determined that Mr. Kerzner was employed pursuant to a fixed‑term contract rather than a contract of indefinite hire and that the 2008 agreement re‑set Mr. Kerzner’s employment clock. The judge ordered Mr. Kerzner paid in accordance with the 2014 Agreement. On the counter‑claim the judge found insufficient evidence to demonstrate a breach of ongoing fiduciary obligations. The Court of Appeal for Ontario granted the appeal. It determined that the 2008 release in the share purchase agreement had to comply with the Employment Standards Act, SO 2000, c. 41 but that it released him from common law notice prior to 2008. The court of appeal concluded that Mr. Kerzner was entitled to the maximum termination and severance pay permitted under the Act. The court of appeal dismissed the cross‑appeal.