APPEAL DISMISSED

1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37

Financial institutions — Banks — Request for information and documents

On appeal from a judgment of the Quebec Court of Appeal (Vézina, Marcotte and Hogue JJ.A.), 2018 QCCA 8, affirming a decision of Davis J., 2015 QCCS 1135.

As part of the enforcement of fiscal laws, the Agence du revenu du Québec (“ARQ”) may require the provision of certain information and documents. The ARQ sent a formal demand for information and documents pursuant to s. 39 of the Quebec Tax Administration Act (“Demand”) to a branch of the National Bank of Canada in Calgary as part of an audit of DGGMC Bitton Trust (“Trust”), which maintains a bank account at the Calgary branch. The ARQ was seeking to ascertain the residence of the Trust and determine if the Trust owed taxes in Quebec. It sent the Demand to the Calgary branch rather than to National Bank in Quebec in order to conform to the requirements of s. 462(2) of the Bank Act, which directs that certain documents pertaining to bank customers be sent to the branch of account. The sole trustee of the Trust, 1068754 Alberta Ltd. (“Alberta Ltd.”), objected to the Demand as beyond the ARQ’s authority. In Alberta Ltd.’s submission, ss. 462(1) and 462(2) of the Bank Actrequire treating the branch as distinct from the bank as a whole. Thus, it argues that in sending the Demand out of province, the ARQ acted outside its jurisdiction. The Superior Court dismissed the trustee’s motion to quash the Demand. It found that the Demand falls under s. 462(2) of the Bank Act and that any extraterritorial effect that the Demand may have had was merely incidental to Quebec’s power to tax within the province. The Court of Appeal dismissed the trustee’s appeal.

Held (9:0): The appeal should be dismissed.

The Demand was validly issued to the National Bank. The ARQ was required by s. 462(2) of the Bank Actto send the Demand to the Calgary branch. Complying with this requirement of the Bank Act did not render the ARQ’s actions extraterritorial and, accordingly, they were not ultra vires.

Section 462(2) of the Bank Act applies to the Demand. It provides requirements by which documents that pertain to a particular customer — other than those enumerated in s. 462(1) and (3) — are to be communicated to a bank, in order for the bank to be considered to have notice of the documents sent. It is a residual provision. The use of the word “notification” in s. 462(2) contemplates not only documents that serve a notification function, but also documents that impose positive obligations on a bank. The proposal to add the predecessor to s. 462(2) was based on a practical concern that the affected bank branch actually receive notice of the bank’s obligations before the obligations are considered binding. From its inception, s. 462(2) was concerned with documents that could impose obligations on recipient banks. Thus, the Demand, which compels the production of documents and information, comes within the scope of s. 462(2). It is consistent with s. 462(2)’s concern with practical convenience for the ARQ to send the Demand to the Calgary branch where some of the requested documents are located.

However, s. 462(1) of the Bank Act has no application to the Demand. The purpose of s. 462(1) is to set out the preconditions for binding customer property held by the bank, either in the form of valuable assets or bank account debt. This provides certainty and thereby protection to banks from the risk of double liability in dealing with claims to customer property. The Demand is neither among the enumerated documents in s. 462(1) (a) to (d) nor does it seek to “bin[d] . . . property belonging to a person and in the possession of a bank”, or “money owing to a person by reason of a deposit account in a bank”, as stipulated in s. 462(1). Thus, s. 462(1) does not apply to the Demand, and so it follows that the application of s. 462(1) could not have rendered the Demand extraterritorial.

The bank, as a corporation, is a single entity; its branches are treated as distinct only for limited and specific purposes. Branches of a bank are only regarded as distinct where practical exigencies require it. There is no basis in the text of s. 462(2), in the underlying policy, or in the practicality of bank operations, to regard a branch as distinct in order to make a formal demand on the bank. The purpose of s. 462(2) is to provide a practical means by which the bank as a whole is fixed with notice. It is to the bank that the Demand is made. One is not required to conceptualize the bank and its branches as separate entities to achieve this purpose. Instead, s. 462(2) is premised on the idea that a branch is part of the bank. This is exemplified by the fact that nothing further is required from a branch upon receiving a document under s. 462(2) for the bank to be fixed with notice; the entities are one and the same.

In sending the Demand to the Calgary branch as required by s. 462(2), the ARQ did not act extraterritorially. The fact that the exercise of the ARQ’s power has some impact outside Quebec does not ipso facto render such action impermissible or extraterritorial. In this case, the determinative point in characterizing the exercise of the coercive power is the place where enforcement of the Demand may be sought. There is no dispute that National Bank operates in Quebec. It would be absurd if the procedural requirements imposed by s. 462(2) of the Bank Actwere understood to affect the ARQ’s authority to issue a formal demand to a bank that operates within its territorial jurisdiction. There is no interference with Alberta’s territorial sovereignty in communicating a formal demand to National Bank through one of the bank’s branches in Alberta. Nor is there any unfairness in subjecting a corporation that operates in multiple jurisdictions in Canada to a formal demand from a jurisdiction in which it operates. If the ARQ, in the absence of s. 462(2), would have authority to issue the Demand, the application of s. 462(2) does not detract from this.

Citation: 1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37

SCC File No. : 37999

Reasons for Judgment: Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown and Martin JJ. concurring)

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37898

Desjardins Financial Services Firm Inc., Desjardins Global Asset Management Inc., a lawfully constituted legal person, formerly Desjardins Asset Management Inc. v. Ronald Asselin

(Que.)

Civil procedure — Class action — Authorization criteria — Common questions

The respondent Ronald Asselin made investments with Caisse Desjardins de Sherbrooke‑Est. Called “Perspectives Plus Term Savings” and “Alternative Term Savings”, they were principal‑protected term deposits that were not cashable before maturity. Following the economic crisis of 2008, Mr. Asselin was informed in March 2009 that although the principal was still protected, the investments would not yield any return and would continue not to be cashable until the end of the term. In 2011, Mr. Asselin filed a motion for authorization to institute a class action in contractual civil liability against the applicant Desjardins Financial Services Firm Inc. on the ground that it had encouraged him to make investments that were represented to be safe even though they involved a specific risk that could affect their yield potential. He also sought authorization to institute a class action in extracontractual civil liability against the applicant Desjardins Global Asset Management Inc. on the ground that it had designed and managed the investments in question in a reckless and incompetent manner that was not in keeping with the risk associated with a financial product represented to be safe, and that it had used inappropriate financial strategies.

38463

C.M. Callow Inc. v. Tammy Zollinger, Condominium Management Group, Carleton Condominium Corporation No. 703, Carleton Condominium Corporation No. 726. Carleton Condominium Corporation No. 742, Carleton Condominium Corporation No. 765, Carleton Condominium Corporation No. 783, Carleton Condominium Corporation No. 791, Carleton Condominium Corporation No. 806, Carleton Condominium Corporation No. 826, Carleton Condominium Corporation No. 839, Carleton Condominium Corporation No. 877

(Ont.)

Contracts — Commercial contracts — Performance — Duty of honest performance

C.M. Callow Inc. (owned and operated by Christopher Callow) provided maintenance services to ten condominium corporations managed by Condominium Management Group and a designated property manager. Those combined corporations formed a Joint Use Committee (JUC) to make decisions regarding joint and shared assets of the corporations and, in April 2012, entered into two two‑year maintenance contracts with Mr. Callow. One contract covered summer maintenance work and the other covered winter maintenance. The winter contract, which ran from November 2012 to April 2014, contained a provision allowing for early termination by the JUC on 10 days’ notice. In March or April of 2013, the JUC decided to terminate the winter contract, but did not provide Mr. Callow with notice of termination. During the summer of 2013 Mr. Callow, of his own volition, performed extra “freebie” landscaping work in the hope that this would act as an incentive for the JUC to renew the contracts. In September of 2013 the JUC gave notice it intended to terminate the contracts. Mr. Callow sued for breach of contract. The Superior Court determined that the JUC breached their contractual duty of honest performance by acting in bad faith. The Court of Appeal allowed the appeal and determined that the trial judge improperly expanded the duty of honest performance. Relying on Bhasin v Hrynew, 2014 SCC 71, the Court of Appeal found that the JUC owed Mr. Callow nothing beyond the 10‑day formal notice period and that failure to provide notice on a more timely basis was not in itself evidence of bad faith. The Court of Appeal emphasized that there is no unilateral duty to disclose.

38531

Mark Dobson v. Her Majesty the Queen

(Ont.)

Criminal law — Defence of mental disorder — Two counts of first degree murder

Mr. Dobson acknowledged that he had killed two individuals in May 2012, but argued that he was not criminally responsible because at the time of the murders he suffered from a mental disorder that rendered him incapable of knowing that his conduct was wrong. The trial judge was satisfied that at the time of the murders, Mr. Dobson suffered from a mental disorder which was probably schizophrenia. The trial judge was however not satisfied that Mr. Dobson was incapable of appreciating the nature and quality of his conduct. Further, he was satisfied that Mr. Dobson was not incapable of knowing that his conduct was morally wrong. The trial judge therefore concluded that Mr. Dobson was criminally responsible for his conduct and entered convictions on both counts of first degree murder. The Court of Appeal unanimously dismissed the appeal.

38551

P.B. v. Her Majesty the Queen

(Ont.)

The complainant is the applicant’s daughter. Over time, the sexual abuse escalated, and was ongoing for many years. The complainant was referred to a psychiatrist by her family doctor. The applicant alleges that the Crown breached its disclosure obligations relating to the complainant’s therapeutic records that were in its possession. Those records were not produced to the applicant until the second day of trial after the complainant waived her privacy interest. After a trial by judge and jury, the applicant was convicted of sexual interference, two counts of sexual assault and incest. The Court of Appeal dismissed the conviction appeal.

38570

Ravia Walia v. College of Veterinarians of Ontario

(Ont.)

Law of Professions — Veterinarians — Discipline

Mr. Walia, applicant, is a licensed veterinarian. A complaint was made against him to the College of Veterinarians of Ontario (“College”), respondent, after he performed eye surgery on a dog. Mr. Walia was found guilty of professional misconduct. The College’s Discipline Committee suspended his licence for three months and imposed other limitations on it. The Discipline Committee also ordered Mr. Walia to pay the College’s costs in the amount of $142,000.00. Mr. Walia’s appeal to the Divisional Court was dismissed. The Court of Appeal denied leave to appeal.

38582

Shawn Michael Rhode v. Her Majesty the Queen

Criminal law — Sentencing — Making child pornography — Long‑term offender designation

Mr. Rhode, applicant, was convicted of accessing, possessing and making child pornography. He was sentenced to three concurrent six‑year terms of imprisonment and was designated a long‑term offender. Mr. Rhode appealed his sentence for making child pornography, arguing, among other things, that the sentence was demonstrably unfit, reflected an improper emphasis on one or more of the objectives of sentencing, failed to properly address the objective of rehabilitation, and was not proportionate to the gravity of the offence and his degree of responsibility. A majority of the Court of Appeal dismissed the appeal. Schwann J.A., dissenting, would have allowed the appeal and imposed a two‑year term of imprisonment to be served consecutively to the other sentences imposed. She did not take issue with how the majority characterized the gravity of the offence or the primacy of denunciation and deterrence. She parted company with them on how the sentencing judge reconciled the individualization of the offence and Mr. Rhode with comparator cases.