APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords
38593

Michele Marie Mulkey a.k.a. Michele Marie Messina

v. Minister of Justice Canada on behalf of the United States of America

QC Extradition — Surrender order — Judicial review
38678 Robert George Kirk, as Representative Plaintiff v. Executive Flight Centre Fuel Services Ltd., et al. BC Civil Procedure — Class actions
38664 Patrick Bédard v. Caisse Desjardins de Limoilou QC Evidence — Contracts — Damages
38669 College of Optometrists of Ontario and College of Opticians of Ontario v. Essilor Group Canada Inc.  ON Constitutional law — Extraterritorial limitation on provincial legislation
38440 Panasonic Corporation, et al. v. Khurram Shah, et al. ON Civil procedure ― Class actions ― Certification
38512 Giovanni D'Amico v. Her Majesty the Queen QC Constitutional law — Charter of Rights  — Search and seizure
38683 Deidre Chantel Gardner v. Her Majesty the Queen QC Criminal law — Jurors — Selection
38724 Manigeh Sabok Sir v. Her Majesty the Queen, Attorney General of Canada, Joe Lozinski, Chris Case, Dean Vodden, Officer Darko, Officer Siguenza, Ryan How and Rod Ens FC Charter of Rights  — Right to equality — Freedom of expression
38727 Myriam Michail v. Ontario English Catholic Teacher’s Association, et al. ON Charter of Rights  — Freedom of expression
38674 Ghani Osman v. Attorney General of Canada FC Administrative law — Boards and tribunals
38730 Byeongheon Lee v. Richcraft Homes Ltd. ON

Civil procedure — Appeals

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38593

Michele Marie Mulkey a.k.a. Michele Marie Messina v. Minister of Justice Canada on behalf of the United States of America

(Que.)

 

Extradition — Surrender order

The applicant requested that the Minister of Justice reconsider a previous decision to surrender her to the United States of America on criminal charges relating to the abduction of her children in violation of a custody order made against her in the State of Georgia. In her decision on reconsideration, the Minister of Justice did not consider the unavailability of a Canadian defence in the requesting state as part of her decision on surrender under s. 44(1)  of the Extradition Act, S.C. 1999, c. 18 , because the applicant did not meet the threshold test set out in an earlier decision involving the applicant: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973. The Minister of Justice ultimately denied the applicant’s request for reconsideration and ordered the applicant’s surrender. A majority of the Court of Appeal dismissed the application for judicial review holding that the Minister’s decision on reconsideration was not unreasonable.

38678

Robert George Kirk, as Representative Plaintiff v. Executive Flight Centre Fuel Services Ltd., Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Transportation and Infrastructure and the Minister of Forests, Lands and Natural Resource Operations, Danny LaSante and Transwest Helicopters Inc.

(B.C.)

Civil Procedure — Class actions — Certification 

A tanker truck was loaded with helicopter fuel. There was a spill of the helicopter fuel into the Lemon Creek and the connected waterways. The surrounding area was evacuated and residents were ordered not to drink the water. The applicant applied to certify a class action on behalf of the residents who were evacuated from the region. The applicant alleged that the spill caused property damage, loss of use and enjoyment of the property, and a diminution in property values across the evacuation zone. The chambers judge certified the class action in negligence and in nuisance. The appeal was allowed by the Court of Appeal.

38664

Patrick Bédard v. Caisse Desjardins de Limoilou

(Que.)

Evidence — Contracts — Damages

In June 2013, the applicant, Mr. Bédard, signed with the respondent, the Caisse, a revolving credit contract secured by an immovable hypothec on his condominium. In March 2016, the Caisse served on him a notice of the exercise of a hypothecary right in which it indicated that it was entitled to ask him to surrender the immovable within 60 days. Mr. Bédard then filed an application for an interlocutory injunction for cancellation of the registration of a notice of the exercise of a hypothecary right on his immovable. That application was dismissed. Mr. Bédard also brought an application in which he sought a declaration of nullity of a clause of the contract with the Caisse, cancellation of the registration of a notice of exercise for taking in payment that had been published in respect of his property, a declaration that the Caisse’s proceeding was abusive, and damages.

The Superior Court dismissed Mr. Bédard’s application. It found that the revolving credit contract he had signed was payable on demand and accordingly granted the Caisse’s cross-application for forced surrender for the purpose of taking in payment. The Court of Appeal unanimously dismissed the appeal.

38669

College of Optometrists of Ontario and College of Opticians of Ontario v. Essilor Group Canada Inc.

(Ont.)

Constitutional law — Extraterritorial limitation on provincial legislation

Essilor Group Canada Inc. sells contact lenses and eyeglasses online. Its online business is based in British Columbia. Ontario residents placed orders online. Essilor filled those orders in British Columbia and shipped eyeglasses and contact lenses into Ontario to those customers. The College of Optometrists of Ontario and the College of Opticians of Ontario applied for a declaration that Essilor’s delivery of eyeglasses and contact lenses to customers in Ontario is “dispensing” and therefore a controlled act under s. 27 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Section 27 regulates performance of controlled acts in Ontario and makes dispensing contact lenses or eye glasses a controlled act. The Colleges sought an injunction against Essilor. The application judge granted the declaration and an injunction. The Court of Appeal allowed an appeal.

38440

Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., Sanyo Electric Co., Ltd., Sanyo North America Corporation and Sanyo Energy (U.S.A.) Corporation v. Khurram Shah and Alpina Holdings Inc.

(Ont.)

Civil procedure ― Class actions ― Certification

Khurram Shah is a representative plaintiff in a proposed class action claim on behalf of all Canadian residents who purchased Lithium Ion Batteries [“LIBs”] and products containing LIBs, such as laptop computers or cellular phones, between January 1, 2000 and December 31, 2011. Proposed class members include purchasers of the defendants’ products as well as “umbrella purchasers” who purchased an LIB or an LIB product that was not manufactured or supplied by a defendant. Mr. Shah, as representative, alleges that the applicants participated in a global criminal price-fixing cartel, leading to increased prices throughout the LIB market at each level of the distribution chain, including the consumer level. The Motion’s Judge at the Ontario Superior Court of Justice certified in part at first instance. However, the motion’s judge did not certify the unlawful means conspiracy claim or the “umbrella purchaser” claims, concluding that umbrella purchaser claims would lead to indeterminate liability. On appeal, the Ontario Superior Court of Justice certified the unlawful means conspiracy claim but refused to certify the umbrella purchaser claims. On further appeal, the Court of Appeal for Ontario determined that the Divisional Court had correctly certified the unlawful means conspiracy claim but incorrectly refused the umbrella purchaser claims. It held that umbrella purchasers had a cause of action under s. 36  of the Competition Act, RSC 1985, c. C‑34 

38512

Giovanni D'Amico v. Her Majesty the Queen

(Que.)

Constitutional law — Charter of Rights  — Search and seizure — Remedy

Mr. D’Amico, applicant, was convicted of assault, sexual assault and sexual assault causing bodily harm in relation to four female prostitutes. When the police suspected his involvement in the assaults, they set up an undercover operation and ultimately obtained his used coffee cup. From the cup, Mr. D’Amico’s DNA was extracted and then analyzed. The analysis revealed a match to the DNA recovered from two of the assaulted women. The matches, along with other evidence, led police to successfully obtain a DNA warrant which ultimately confirmed the previous findings. At trial, Mr. D’Amico unsuccessfully applied to have the DNA evidence excluded. The trial judge found that Mr. D’Amico had relinquished any expectation of privacy in his DNA because he had abandoned his coffee cup. She also found nothing in the police’s method in collecting the coffee cup to have infringed Mr. D’Amico’s s. 7  or 8  Charter  rights. The Court of Appeal dismissed the appeal.

38683

Deidre Chantel Gardner v. Her Majesty the Queen

(Que.)

Criminal law — Jurors — Selection

In December 2017, a jury found the applicant Ms. Gardner guilty of importing cocaine and of possession of cocaine for the purpose of trafficking. Ms. Gardner appealed these verdicts, arguing that the Crown used four of its peremptory challenges to systematically exclude black people from serving on the jury.

The Court of Appeal unanimously dismissed the appeal. It excluded evidence that Ms. Gardner sought to adduce as it found that it failed to meet the criteria for the admission of fresh evidence. It also dismissed the ground of appeal concerning the propriety of the use of peremptory challenges, notably as in its view it should have been raised before the start of the trial.

38724

Manigeh Sabok Sir v. Her Majesty the Queen, Attorney General of Canada, Joe Lozinski, Chris Case, Dean Vodden, Officer Darko, Officer Siguenza, Ryan How and Rod Ens

(F.C.)

Charter of Rights  — Right to equality — Freedom of expression

The applicant commenced an action against the respondents. The applicant makes a number of allegations regarding the conduct of RCMP officers and Canada Border Services Agency (CBSA) officers who interacted with her in a number of Canadian jurisdictions. The applicant also makes allegations regarding the handling of complaints she made against these officers and the internal investigation of these complaints by the RCMP and CBSA. The respondents filed their statement of defence and the applicant filed a reply. The parties’ respective affidavits of documents were to be served by October 22, 2016. On November 3, 2016, the respondents filed a motion for an order extending the time to serve their affidavit of documents. The applicant also filed a motion for the following relief: prohibiting the respondents from obtaining an extension of time; penalizing the respondents for failing to complete its disclosure on time; extending deadlines for the next steps in the litigation; and permitting her to submit additional evidence at trial. Prothonotary Lafrenière granted the respondents’ motion for an extension of time and ordered the applicant to pay into court the amount of $8,900 as security for the respondents’ costs. Prothonotary Lafrenière also dismissed the applicant’s motion. The applicant appealed the two orders granted by Prothonotary Lafrenière. LeBlanc J. dismissed the applicant’s appeal. The applicant’s appeal was dismissed by the Federal Court of Appeal.

38727

Myriam Michail v. Ontario English Catholic Teachers’ Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, Sheila Brescia, London District Catholic School Board, Ontario Labour Relations Board and Attorney General of Ontario

(Ont.)

Charter of Rights  — Freedom of expression

Ms. Michail was employed for many years with the London District Catholic School Board and in 2010, filed a grievance with the Ontario Labour Relations Board. In 2015, a grievance decision was rendered that dissatisfied Ms. Michail. She commenced a judicial review proceeding in the Superior Court of Justice, seeking, judicial review of the 2015 award. She also sought leave to have her application heard by a single judge of the Superior Court of Justice on an urgent basis pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. The Superior Court dismissed her application as it should have been brought before the Divisional Court. Ms. Michail filed a notice of appeal with the Court of Appeal for Ontario. The Court of Appeal subsequently granted the respondents’ motion to quash her appeal. Ms. Michail brought a motion seeking various relief including orders pertaining to audio recordings of court proceedings. Her motion was dismissed.  Ms. Michail’s subsequent motion to review the previous order was dismissed.

38674

Ghani Osman v. Attorney General of Canada

(F.C.)

Administrative law — Boards and tribunals

Mr. Osman filed a grievance against his employer, alleging disguised discipline and discrimination based on race and religion; he applied to refer the grievance for adjudication before the Federal Sector Labour Relations and Employment Board. Following mediation, the parties reached an agreement to settle, which included the employer’s commitment to provide a positive letter of reference. Upon discovering that the letter was unsatisfactory, Mr. Osman asked for it to be modified; the employer refused, save for one minor change.

Mr. Osman asked the Board to determine whether a valid and binding settlement had in fact been reached, and whether its terms had been executed. Mr. Osman argued that he had been misled in signing the agreement, based on the employer’s alleged misrepresentation with respect to the letter. The Board determined that the agreement was valid and binding, and that its terms had been largely fulfilled; the Board also found that it lacked jurisdiction to reopen the grievance. Throughout the Board hearing process, Mr. Osman had been represented by a member of his union. Mr. Osman then filed (as a self‑represented litigant) an application in the Federal Court of Appeal for judicial review of the Board’s decision. After the parties’ materials application were filed, but before the matter was set down for a hearing, Mr. Osman subsequently retained counsel. He then brought a motion to file: a further affidavit; supplementary legal submissions from his counsel; and copies of the agreement and of the letter of reference (neither document had been before the Board at first instance). A motion judge of the Court of Appeal refused to grant leave to Mr. Osman to file these additional materials. The Court of Appeal then dismissed Mr. Osman’s application for judicial review on the merits, finding that the Board’s decision was reasonable.

38730

Byeongheon Lee v. Richcraft Homes Ltd.

(Ont.)

Civil procedure — Appeals

Mr. Lee commenced a lawsuit against Richcraft Homes Ltd. Mr. Lee was the owner of Jay‑Pee dry cleaners and Richcraft is the owner of a commercial plaza. Mr. Lee alleged that he had suffered business losses of $200,000 and special damages of loss of income and loss of equipment in the amount of $150,000. Mr. Lee alleged that his use and access to the dry cleaning premises was interfered with by another tenant. Mr. Lee alleges that Richcraft ignored his complaints, and terminated his tenancy. Richcraft did not defend the action and was noted in default. Richcraft successfully applied to set aside the noting in default, and successfully moved to have Mr. Lee’s action struck out. Master Mcleod concluded that Mr. Lee had no standing under the lease or personal cause of action and refused to grant leave to amend the action. Mr. Lee’s appeal was dismissed by Mitrow J. There were a number of motions brought by Mr. Lee seeking extensions of time to appeal. The Court of Appeal granted Mr. Lee’s motion and imposed terms to appeal the decision of Mitrow J. The Court of Appeal dismissed Mr. Lee’s application for leave to appeal.