APPEAL DISMISSED

R. v. Mills, 2019 SCC 22

Constitutional law — Charter of Rights — Search and seizure — Child luring — Police sting operation

SCC No. Case Name Province of Origin Keywords
38449 Errol Massiah v. Justices of the Peace Review Council, et al. ON Civil procedure — Abuse of process
38268 Industrielle Alliance, Insurance and Financial Services Inc. v. Pascale Forest QC Insurance — Disability insurance
38311 Hitesh Tailor v. Prisca Chiassi QC Private international law — Jurisdiction of Quebec court
38430 9179-0717 Québec inc. and LEGD inc. v. Ville de SaintColomban QC Municipal law — By-laws — Validity
38477 Mariam Adam v. Canadian Imperial Bank of Commerce MB Civil procedure — Summary judgment
38460 Mariam Adam v. Manufacturers Life Insurance Company (Manulife) MB Civil procedure — Summary judgment
38330 Wilfrid Nguesso v. Minister of Citizenship and Immigration FC Immigration — Inadmissibility and removal
38404 Claudette Wood, Bruce Cook and John Featherstone v. CTS of Canada Co. and CTS Corporation ON Employment law — Notice — Mass termination
38346 Tim Wood, Litigation Representative of K.S., an Infant v. David Willox and Brian Muir AB Torts — Negligence — Standard of care
38439 Saju Begum v. Minister of Citizenship and Immigration FC Charter of rights — Right to equality
38446 Chief of Police of the Calgary Police Service v. Marc Strong AB Administrative law — Boards and tribunals
38447 Chief of Police of the Edmonton Police Service, et al. v. Cst. T. Deluca AB Administrative law — Boards and tribunals
38456 Rossita Stoyanova v. Litwin Boyadjian inc., in its capacity as trustee in bankruptcy of Les Disques Mile End inc. and Nicolas Maranda QC Intellectual property — Copyright

APPEAL DISMISSED

R. v. Mills, 2019 SCC 22

Constitutional law — Charter of Rights — Search and seizure — Child luring — Police sting operation

On appeal from a judgment of the Newfoundland and Labrador Court of Appeal (Welsh, Harrington and Hoegg JJ.A.), 2017 NLCA 12, affirming the conviction entered by Orr J., 364 Nfld. & P.E.I.R. 237, 1136 A.P.R. 237, 332 C.R.R. (2d) 50.

A police officer posed online as a 14‑year‑old girl named Leann, with the intent of catching Internet child lurers. Using Facebook and Hotmail, M sent Leann sexually explicit messages and arranged a meeting in a park, where he was arrested and charged with child luring. Without having obtained prior judicial authorization, the officer used screen capture software to create a record of his online communications with M as evidence for trial. M applied for the exclusion of the evidence. The trial judge found that the messages were “private communications” as defined in s. 183 of the Criminal Code and that prior judicial authorization to capture the messages under s. 184.2 of the Criminal Code was therefore required from the point at which the police had determined that M had a potentially inappropriate interest in a minor. He also held that the use of the screen capture software generated a seizure of the communications, and that M had an expectation of privacy in his communications. He therefore found that the police breached s. 8 of the Charter. However, he found that admitting the evidence would not bring the administration of justice into disrepute and he convicted M. The Court of Appeal held that the trial judge had erred in concluding that authorizations under s. 184.2 were required and found that M’s expectation of privacy was not objectively reasonable. It held that M’s s. 8 rights were not infringed and therefore upheld the conviction.

Held: The appeal should be dismissed.

Per Abella, Gascon and Brown JJ.: Section 8 of the Charter was not engaged when the officer captured M’s electronic communications. To claim s. 8’s protection, an accused must show a subjectively held and objectively reasonable expectation of privacy in the subject matter of the putative search. M could not claim an expectation of privacy that was objectively reasonable because M was communicating with someone he believed to be a child, who was a stranger to him, and the investigatory technique meant that the undercover officer knew this when he created her. On the facts of this case, giving judicial sanction to the particular form of unauthorized surveillance in question would not see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society, if expectations of privacy are to express a normative, rather than descriptive, standard. Therefore, the sting did not require prior judicial authorization.

Objective reasonableness is assessed in the totality of the circumstances, along four lines of inquiry. The first three inquiries are an examination of the subject matter of the alleged search, a determination as to whether the claimant had a direct interest in the subject matter and an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter. These lines of inquiry support M’s claim to an expectation of privacy. The subject matter is the electronic communications, and they have no legally significant distinction from text messages. M intended to have a one‑on‑one online conversation. As a participant and a co‑author of the communications, M had a direct interest in the subject matter and he expected the communications to be private.

The fourth inquiry is whether M’s subjective expectation of privacy was objectively reasonable having regard to the totality of the circumstances. Determining objective reasonableness is a normative question about when Canadians ought to expect privacy given the applicable considerations. On a normative standard, adults cannot reasonably expect privacy online with children they do not know. This appeal involves a particular set of circumstances, where the nature of the relationship and the nature of the investigative technique are decisive. Although s. 8 is not traditionally approached from the perspective of the particular relationship because its protection is content-neutral, the police knew the relationship in advance of any potential privacy breach. While society values many adult‑child relationships as worthy of s. 8’s protection, this relationship is not one of them. With respect to the investigative technique, the police knew from the outset that the relationship was fictitious and that Leann was truly a stranger to M. They could confidently and accurately conclude that no s. 8 concern would arise from reviewing these communications. Section 8 jurisprudence is predicated on police obtaining prior authorization before a potential privacy breach. No such potential existed in this case. Section 184.2 of the Criminal Code does not apply in the instant case because a communication made under circumstances in which there is no reasonable expectation of privacy cannot constitute a “private communication” for the purposes of s. 183.

Per Wagner C.J. and Karakatsanis J.: There is agreement that the appeal should be dismissed, but for different reasons. When undercover police officers communicate in writing with individuals, there is no search or seizure within the meaning of s. 8 of the Charter. This is because an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating. Here, the police did not interfere with a private conversation between other individuals; they directly participated in it. The police also did not violate s. 8 of the Charter  when they communicated with M and retained screenshots of those conversations. Because the conversation occurred via email and Facebook, it necessarily took place in a written form. The screenshots from the screen capture software are simply a copy of the pre‑existing written record and not a separate surreptitious permanent record created by the state.

Not every investigatory technique constitutes a search or seizure — s. 8 may be engaged only where the investigatory conduct intrudes upon a person’s reasonable expectation of privacy. Section 8 does not prevent police from communicating with individuals in the course of an undercover investigation, because the investigatory technique of engaging in conversation, even where the officer is undercover, does not diminish an individual’s reasonable expectation of privacy. Here, an undercover police officer conversed with M using Facebook and email. This is no different from someone speaking to an undercover officer in person. M clearly intended for the recipient (who happened to be a police officer) to receive his messages. Because he had no reasonable expectation that his messages would be kept private from the intended recipient, s. 8 is not engaged.

The police’s use of the screen capture software is also not a search or seizure. There is no relevant difference in the state preserving the conversations by taking a screenshot of them rather than using a computer to print them or tendering a phone or laptop with the conversations open and visible. This use of technology is not intrusive or surreptitious state conduct. Furthermore, the permanent record of the conversation resulted from the medium through which M chose to communicate. He could not reasonably expect that the intended recipient of his communications would not have a written record of his words. Because the police techniques used in the instant case did not engage the protections of s. 8, judicial pre‑authorization was not required.

While the Internet empowers individuals to exchange much socially valuable information, it also creates more opportunities to commit crimes. Undercover police operations, using the anonymity of the Internet, allow police officers to proactively prevent sexual predators from preying on children.

Per Moldaver J.: The reasons provided by Karakatsanis J. and Brown J. are sound in law and each forms a proper basis for dismissing the appeal.

Per Martin J.:  The state surveillance of M’s private communications constituted a search that breached s. 8 of the Charter. It was objectively reasonable for M to expect that a permanent recording of the communications between himself and the police officer would not be surreptitiously acquired by an agent of the state absent prior judicial authorization. The police officer’s use of the screen capture software constituted an “interception” within the meaning of Part VI of the Criminal Code. Because he did not obtain prior judicial authorization, the search was unreasonable. However, the application to exclude the evidence pursuant to s. 24(2) of the Charter was properly dismissed. While the impact of the breach was significant, the seriousness of the breach was minimal. Exclusion of relevant and reliable evidence in a child‑luring case, obtained using tactics that the police had good reason to believe were legal at the time of the investigation, would bring the administration of justice into disrepute.

The regulation of an ever‑changing internet requires careful balancing of rights and interests. The sexual exploitation of a minor is an abhorrent act and children and youth are particularly vulnerable on the internet. State actors must be equipped with investigative powers that will allow them to root out sexual exploitation online. Such investigative powers, however, need to be counter‑balanced with the state’s obligation to respect the privacy rights of its citizens. Reasonable expectation of privacy is assessed on a normative, rather than descriptive, standard. The question to be asked is whether the privacy claim must be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society. In a free and democratic society, it is reasonable to expect that the state will only access electronic recordings of private communications if it has sought authorization to do so.

R. v. Duarte, [1990] 1 S.C.R. 30, held that surreptitious participant electronic surveillance by the state requires regulation. Warrantless surveillance at the sole discretion of the police annihilates the right of individuals to choose the range of their auditors and imposes a risk of having to contend with a documented record of their words. This effectively strips freedom of thought and expression of any meaning. In response to Duarte, Parliament enacted s. 184.2 of the Criminal Code which requires prior judicial authorization for electronic state participant surveillance. In Duarte, documentation of private communications occurred via state recording technology. Now, individuals communicate using electronic media, such that their conversations are inherently recorded, and the way to obtain a real‑time record of a conversation is simply to engage in that conversation. This shift in communication methods should not mean that the state should no longer be required to seek authorization to access electronic recordings of private communications. Otherwise, there would be no meaningful residuum to the right to live free from surveillance.

The electronic communications in the case at bar are a hybrid of an oral conversation and the surreptitious electronic recording of that conversation that attracted a reasonable expectation of privacy in Duarte. This duality should support, not undermine the protection of privacy rights, because a recording exists and the state has unrestricted and unregulated access to it. Contemporary electronic communications are analogous to electronic recordings because they possess the characteristics of permanence, evidentiary reliability, and transmissibility that define electronic recordings and they are a documented record of the conversation. That conversants are aware that their communications are being recorded and knowingly create the record does not mean that electronic communications must be analogized to oral conversations nor does it destroy any reasonable expectation of privacy. Creating written, electronic records of one’s private communications is a virtual prerequisite to participation in modern society, yet individuals still retain subjective and objective expectations of privacy in those communications. Unregulated state electronic surveillance will lead to self‑censoring online and will annihilate society’s sense of privacy.

A general proposition that it is not reasonable for individuals to expect that their messages will be kept private from the intended recipient cannot apply when the state has secretly set itself up as the intended recipient. In the case of state participant surveillance, the notion of intended recipient is infused with the concept of the right to choose one’s listeners. An individual retains the reasonable expectation that the state will only permanently record a private communication with judicial authorization. Further, there are quantitative and qualitative distinctions between in‑person and electronic state surveillance that make the analogy between the “conversations” in Duarte and today’s electronic communications untenable. Quantitatively, in‑person conversations with undercover police officers are not capable of subjecting the public to surreptitious electronic surveillance on a mass scale due to the practical resource constraints of undercover police work whereas electronic surveillance technologies make possible mass surveillance as never before. Qualitatively, the ability to fabricate alternative identities has never been more possible and on‑line anonymity allows for a different order of state surveillance using believable, false identities. Finally, state action that intrudes on a reasonable expectation of privacy is intended to be addressed via s. 8   of the Charter  . Placing communications outside s. 8   because the state recipient can obtain a record simply by engaging in the conversation undermines the purpose of privacy rights and upsets the careful balance between the ability of the state to investigate crime and the rights of individuals to private areas of expression.

Determining whether there is a reasonable expectation of privacy based on a category of relationship is risk analysis reasoning, not content neutral, and puts courts in the business of evaluating personal relationships with a view to deciding which deserve Charter  protection under s. 8, and which do not. Judicial disapprobation of an accused’s lifestyle has no place in the s. 8 privacy analysis. Finally, a finding of reasonable expectation of privacy does not mean that the state is forbidden from conducting a search — it means that the police action must be supported by a power that respects s. 8 of the Charter. The scenario presented of a sting context in which the state pretends to be a child and communicates with those seeking to sexualize children is the type of circumstance in which the state could and should obtain judicial authorization to surveil private, electronic communications. The risk that one’s co‑conversant may disclose a private communication does not affect the reasonableness of the expectation that the state, in the absence of such disclosure, will not intrude upon that private communication. Under s. 8, the analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. It is not reasonable to assume that communications between adults and children who do not know each other will be criminal in nature. Content neutrality was developed to ensure that unjustified state intrusions into privacy would not occur. The s. 8 inquiry has never assumed that some relationships are a priori criminal and therefore do not legitimately attract an expectation of privacy. It is not the role of the courts to evaluate personal relationships with a view to denying s. 8 Charter  protection to certain classes of people.

The use of screen capture software fits within the definitions of “intercept” and “private communication” under s. 183 of the Criminal Code. The word “intercept” denotes an interference between the sender and recipient in the course of the communication process. The police officer recorded the informational content of the private communications when he saved them for the sake of reproduction for the courts in real‑time. Applying Part VI in this case strikes the right balance between law enforcement’s need to investigate crime and the right to be left alone. Even in the absence of screen capture software, it may be that the state investigative technique employed here constituted an “interception”. In communicating with M over a medium that inherently produces an electronic recording, the police officer “acquired” a record of the communication. If electronic police surveillance of private communications is only regulated by Part VI to the extent that extraneous recording software is employed, it is no longer sufficiently comprehensive. To be constitutionally compliant, state acquisition in real‑time of private electronic communications requires regulation.

Citation:                               R. v. Mills, 2019 SCC 22

SCC File No. :                      37518

Reasons for Judgment: Brown J. (Abella and Gascon JJ. concurring)

Concurring Reasons:           Karakatsanis J. (Wagner C.J. concurring)

Concurring Reasons:           Moldaver J.

Concurring Reasons:           Martin J.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17683/index.do

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38449   Errol Massiah v. Justices of the Peace Review Council, Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and Attorney General for Ontario

— and — 

Raj Anand and Weir Foulds LLP  (Ont.)

Civil procedure — Abuse of process — Representation by counsel

Erroll Massiah is a former justice of the peace. In 2011 and 2012 he faced two separate hearings before the Justices of the Peace Review Council for misconduct towards multiple women at two courthouses. The first hearing resulted in mandated training plus a ten day suspension without pay. The second hearing resulted in a recommendation that Mr. Massiah be removed from office. By way of an Order in Council, he was removed from office on April 29, 2015. Mr. Massiah applied to the Ontario Superior Court of Justice for judicial review of his removal which was partially allowed on the issue of compensation for litigation costs. In June 2017, the Court of Appeal of Ontario denied leave to appeal the judicial review decision. Mr. Massiah then moved to reopen the judicial review at the Ontario Superior Court of Justice on the basis of Rule 59.06 of the Rules of Civil Procedure, RRO 1990, Reg 194. His motion was dismissed as an abuse of process. Leave for appeal was then dismissed by the Court of Appeal for Ontario.

38268  Industrielle Alliance, Insurance and Financial Services Inc. v. Pascale Forest

(Que.)

Insurance — Disability insurance 

Ms. Forest, the respondent, stopped working in November 2007 after a diagnosis of chronic fatigue syndrome. She availed herself of the group disability insurance plan guaranteed by the applicant, Industrielle Alliance (“insurer”), first by receiving short-term disability benefits. She then received benefits under the long-term plan, but in 2011 the insurer stopped paying benefits on the basis that Ms. Forest no longer met the eligibility criteria. Ms. Forest instituted an action for restoration of the disability benefits and for damages against the insurer, but was unsuccessful. The Court of Appeal allowed her appeal in part.

38311 Hitesh Tailor v. Prisca Chiassi 

(Que.)

Private international law — Jurisdiction of Quebec court — Forum non conveniens 

The applicant, Mr. Tailor, resides in London. He was a very close friend of the deceased, Duc Roberto Ferretti (“Mr. Ferretti”), who died in Italy in 2005. During various periods of time, they cohabited as a couple. The respondent, Ms. Chiassi, is the sister of Mr. Ferretti’s late wife. Mr. Ferretti emigrated to Canada in 1975 without his wife. He purchased a number of immovable properties in Canada and eventually became a Canadian citizen, but he still spent a great deal of time abroad over the years. In his will, he declared that he resided in London but that he was domiciled in Castelfidardo, Italy. In the same will, he left his nephew, Marco Ferretti, his furniture in Canada (the value and quantity of which were unknown). The will stated that it had been drawn up in England, but it had been in the possession of a notary in Italy since 2005. Mr. Tailor filed a motion for the issuance of letters of verification for Mr. Ferretti’s will in Quebec. Ms. Chiassi, who was challenging the will in Italy, sought a declaration that the Quebec Superior Court had no jurisdiction to hear Mr. Tailor’s motion because there was no connection with the Quebec forum. In the alternative, she argued that even if there was some connection with Quebec, the Quebec court should refer the matter to Italy pursuant to the forum non conveniens principle codified in art. 3135 of the Civil Code of Québec (“C.C.Q.”). The Quebec Superior Court allowed Ms. Chiassi’s application and declined jurisdiction in favour of the Italian forum. The Court of Appeal dismissed Mr. Tailor’s appeal and allowed Ms. Chiassi’s incidental appeal, finding that the Superior Court had erred in assuming jurisdiction under the second paragraph of art. 3153 C.C.Q. because there was no evidence of “property . . . situated in Québec” for the purposes of applying that provision. 

38430 9179-0717 Québec inc. and LEGD inc. v. Ville de Saint‑Colomban 

(Que.)

Municipal law — By-laws — Validity — Zoning

The respondent, Ville de Saint‑Colomban (“City”), approved a project on land belonging to one of the applicants. The project required public works, which were to be performed by the other applicant; the City therefore authorized the mayor to sign a memorandum of agreement with the first applicant, which had to provide amounts to guarantee the performance of the works. However, the memorandum of agreement was never signed. Following an amendment to the municipal subdivision by‑law, the City indicated that it would be impossible to carry out the project because the lots concerned did not have the minimum area required. The applicants commenced legal proceedings, including an application for mandamus to force the City to sign the memorandum of agreement and an application to have the amendment to the subdivision by‑law declared null on the ground that it was unlawful because it distinguished between lots on a discriminatory basis, namely proximity to an existing street.

The trial judge ruled in the City’s favour and dismissed the application for mandamus. On the application for a declaration of nullity, the judge found that a municipality can adopt a subdivision by‑law providing for minimum area standards that vary based on the proximity of the land to “public works”, including a street. The City was also required to adopt standards corresponding to the minimum standards set by the regional county municipality. The Court of Appeal dismissed the applicants’ appeal, finding that the trial judge had not made any error. It also stated that the rule cited by the applicants, to the effect that uses must be uniform within the same zone, applied to the zoning by‑law, not the subdivision by‑law. The distinctions drawn were expressly authorized by the legislature.

38477 Mariam Adam v. Canadian Imperial Bank of Commerce 

(Man.)

Civil procedure — Summary judgment — Limitations 

The applicant, Mariam Adam, had two credit cards with CIBC, and was sued by the bank when the accounts went into arrears. She defended on the basis that the Limitations Act was applicable to debt incurred more than six years prior to the action and that the interest rates were too high.

A motion for summary judgment was granted, and judgment was granted in favour of CIBC. An appeal to the Court of Appeal was dismissed.

38460 Mariam Adam v. Manufacturers Life Insurance Company (Manulife) 

(Man.)

Civil procedure — Summary judgment — Limitations 

The Bank of Montreal sued the applicant, Mariam Adam, on a credit card debt. She brought the respondent, Manulife into the action as a third party. Manulife defended on the basis that the applicant had not filed a claim, nor had she taken steps to put Manulife on notice of her claim.  A motion for summary judgment was granted in favour of the Bank of Montreal and Manulife.  An appeal to the Court of Appeal was dismissed.

38330 Wilfrid Nguesso v. Minister of Citizenship and Immigration 

(F.C.)

Immigration — Inadmissibility and removal — Serious criminality

The applicant, Mr. Nguesso, is the son of the President of the Republic of the Congo. In 2013, his application for permanent residence in the family class was refused on the basis that he was inadmissible to Canada because he was a member of a criminal organization (s. 37(1) (a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27). The immigration officer had reasonable grounds to believe that Mr. Nguesso was a member of a criminal group through his family connections and that he had been involved in organized criminal activities (embezzlement, misappropriation of company property and money laundering) in the Congo. Mr. Nguesso’s application for judicial review and his appeal were dismissed.

38404 Claudette Wood, Bruce Cook and John Featherstone v. CTS of Canada Co. and CTS Corporation 

(Ont.)

Employment law — Notice — Mass termination

This appeal arises from the closure of the Streetsville, Ontario manufacturing plant operated by CTS of Canada Co. This resulted in a “mass termination” for purposes of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”).  A class action was brought on behalf of former employees against their common employers, CTS of Canada Co. and its parent corporation CTS Corp. (collectively “CTS”). The class consists of 74 former active employees who did not sign a release with CTS and who were not dismissed for cause. The parties agreed that the common issues could be resolved on a motion for summary judgment. The issues related to the requirement under the ESA to give notice to the ESA Director (Form 1 information) in the case of a mass termination, and the adequacy of the notice of termination given by CTS. CTS did not serve and post the Form 1 information until May 12, 2015, 12 days into the mandatory minimum eight-week notice period and more than a year after it gave notice to its employees. The motion judge concluded that s. 58(2) required CTS to serve and post the Form 1 information when it gave notice to employees on April 17, 2014 and not eight weeks before the date of termination, as CTS maintained and that, pursuant to s. 58(4) of the ESA, its notice was not effective until it did so on May 12, 2015. Therefore, the failure to file the Form 1 in a timely way had the effect of invalidating the 13 months of working notice CTS provided prior to filing and posting the Form 1 information on May 12, 2015. The Court of Appeal allowed the appeal in part.  It found that the motion judge erred in deciding the Form 1 issue. The Court of Appeal found CTS was only required to serve and post the Form 1 information at the beginning of May 2015. Since CTS was 12 days late in serving and posting the Form 1 notice, class members are entitled to a further 12 days’ pay in lieu of notice.

38346 Tim Wood, Litigation Representative of K.S., an Infant v. David Willox and Brian Muir 

(Alta.)

Torts — Negligence — Standard of care

J.S. gave birth to K.S. in October, 2000 at 23 weeks’ gestation. His severe prematurity left him with serious, continuing physical and cognitive impairments. The applicant claimed that J.S.’s general practitioner, Dr. Willox, and the obstetrician that Dr. Willox conferred with, Dr. Muir, breached their duties of care by not advising of the availability and advisability of a medical treatment, cerclage, to treat J.S.’s emerging condition. The applicant claimed that cerclage would have extended the gestation period and prevented K.S.’s injuries. The trial judge dismissed the action against the respondents. That decision was upheld on appeal.

38439 Saju Begum v. Minister of Citizenship and Immigration 

(F.C.)

Charter of rights — Right to equality

Ms. Begum is a Canadian citizen who was born in Bangladesh and came to Canada in 1994 under the sponsorship of her husband. They have five children. In 2004, Ms. Begum visited her family in Bangladesh. After the visit, she was diagnosed with depression. In 2008, Ms. Begum applied to sponsor her father, mother and siblings for permanent residence in Canada under the parent grandparent program. Ms. Begum did not have the income to meet the minimum necessary income (MNI) requirement under the governing regulations. A visa officer refused the application. She filed an appeal of the refusal to the Immigration Appeal Division of the Immigration and Refugee Board (IAD) and challenged the constitutionality of the MNI requirement, arguing that because women, racialized communities and people with disabilities experience economic, employment, and income disparities in Canadian society, she was adversely impacted by the MNI requirement, which creates a distinction based on the enumerated grounds of race, sex, and disability, and perpetuates the pre‑existing disadvantages faced by these groups. The IAD dismissed Ms. Begum’s appeal finding that the evidence did not demonstrate a causal connection that produced a disproportionate impact or an adverse effect. On judicial review and appeal, the Federal Court and the Federal Court of Appeal agreed with the IAD.

38446 Chief of Police of the Calgary Police Service v. Marc Strong — and — Alberta Law Enforcement Review Board 

(Alta.)

Administrative law — Boards and tribunals — Jurisdiction

Constable Strong filed a notice of appeal to the Law Enforcement Review Board from what he considers to be disguised discipline appealable to the Board under Part V of the Police Act, RSA 2000, c P‑17. Constable Strong sought to appeal a decision by the Chief of Police of the Calgary Police Service denying reimbursement upon his reinstatement to active duty for hypothetical pay (statutory holiday pay, shift differential, pay for court time) allegedly lost while on leave with pay pending a trial for an assault charge. The Board held that it does not have jurisdiction to hear the appeal. The Court of Appeal allowed an appeal.

38447 Chief of Police of the Edmonton Police Service v. Cst. T. Deluca (No. 2393) and Cst. T. Paulino (No. 2300) 

— and —  Alberta Law Enforcement Review Board  — and between —  Chief of Police of the Edmonton Police Service v. Cst. J. Coughlan (No. 2270)  — and —  Alberta Law Enforcement Review Board  (Alta.)

Administrative law — Boards and tribunals — Jurisdiction

Three police officers filed notices of appeal to the Law Enforcement Review Board from what they consider to be disguised discipline appealable to the Board under Part V of the Police Act, RSA 2000, c P‑17. Constables Deluca and Paulino jointly sought to appeal involuntarily transfers from Edmonton Police Service’s recruit training unit. Constable Coughlan sought to appeal the Edmonton Police Service’s removal of her name from a list of eligible candidates for a school resource officer position. The Board held it does not have jurisdiction to hear the appeals. A majority of the Court of Appeal allowed an appeal.

38456 Rossita Stoyanova v. Litwin Boyadjian inc., in its capacity as trustee in bankruptcy of Les Disques Mile End inc. and Nicolas Maranda 

(Que.)

Intellectual property — Copyright — Vocal performance of poem

In 2010, the respondent Mr. Maranda recorded the applicant Ms. Stoyanova’s vocal performance of a poem she had written. With Ms. Stoyanova’s consent, the recording of that work was integrated with the music of a group called Monitor in order to create a song. Monitor later assigned the rights to the producer, Les Disques Mile End inc., which marketed the song without Ms. Stoyanova’s authorization and without identifying her as the author. Around the same time, and without Ms. Stoyanova’s knowledge, Mr. Maranda made a 96‑minute recording of the ambient noise in his apartment, including a sexual encounter between them. The Superior Court (i) allowed in part Ms. Stoyanova’s application for a permanent injunction and damages against Les Disques Mile End inc. and Litwin Boyadjian inc., in its capacity as trustee in bankruptcy, (ii) ordered them to pay $15,528 for copyright infringement, (iii) ordered Mr. Maranda to pay Ms. Stoyanova $5,000 in moral damages for breach of privacy, and (iv) dismissed the cross‑application, with legal costs to Ms. Stoyanova. The Court of Appeal unanimously dismissed Ms. Stoyanova’s appeal with legal costs, finding that none of the grounds of appeal had merit.