APPEAL DISMISSED

Threlfall v. Carleton University, 2019 SCC 50

Status of persons — Absence — Presumption of life

APPLICATION FOR LEAVE TO APPEAL GRANTED

SCC No. Case Name Province of Origin Keywords
38695 Estate of Bernard Sherman and the Trustees of the Estate and Estate of Honey Sherman and the Trustees of the Estate v. Kevin Donovan ON Judgments and orders — Interlocutory orders

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin  Keywords
38499 Her Majesty the Queen v. Jean Brodeur  QC Criminal law — Sentencing
38568 Margaret Strang or Malgorzata Strang v. Her Majesty the Queen in Right of Ontario ON Courts — Jurisdiction — Vexatious litigant
38692 Kimberly Y. Fawcett v. Attorney General of Canada FC Legislation — Interpretation
38721 Tiffany Peters v. John Chasty Principal, Peel District School Board, Robin Benmergui Vice Principal, Lola Gayle Vice Principal and Lana Del Maestro Track Coach ON Judgments and orders — Reasons — Appeals
38636 Byeongheon Lee v. Canadian Tire Centre and Gene Simmons ON Civil procedure — Disposition without trial
38749 Darla-Jean O'Rourke v. Attorney General of Canada FC Social law — Social assistance
38715 Brandon Marshall v. Her Majesty the Queen ON Criminal law — Charge to jury
38735 Francis Cuggia and Groupe Ultra-Vie inc. v. Autorité des marchés financiers QC Civil procedure — Appeals
38720 Lucyna Blicharz v. Patricia Livingstone, Louise Conrod also known as Louise Arik, Cole Smith, Leanne Smith, Alexandra Goodrich, Zbigniew Lewandowski, Alina Lewandowski, Bridge City Chrysler Dodge Jeep Ltd. and Chrysler Canada Inc. AB Charter of Rights  – Fundamental justice
38719 Elizabeth Ann Johnston v. Paul Wayne Meyer NB Charter of Rights  — Right to equality
38686 Galina Milova v. Minister of Canada Revenue FC Civil procedure — Appeals — Taxation
38708 Wesley Quash v. Her Majesty the Queen YT Criminal law — Sentencing — Considerations
38668 Richard Henry Bain v. Her Majesty the Queen QC Criminal law – Sentencing – Second degree murder
38725 Drew William McPherson v. Her Majesty the Queen  NS Criminal Law — Appeal — Leave to Appeal
38700 Louis Kakoutis and Effie Kakoutis v. TD General Insurance Company  ON Judgments and orders — Summary judgments
38666 Philip James Miller v. Her Majesty the Queen in Right of Canada FC Limitation of actions — Armed forces
38728 Paul Abi-Mansour v. Attorney General of Canada FC Administrative Law – Appeals – Judicial review 
38658 Robert P.J. Day v. Ezra Levant ON Judgments and orders — Summary judgments

 

 

 

APPEAL DISMISSED

Threlfall v. Carleton University, 2019 SCC 50

Status of persons — Absence — Presumption of life

On appeal from a judgment of the Quebec Court of Appeal (2017 QCCA 1632), affirming a decision of Bédard J., 2016 QCCS 406.

On September 10, 2007, R, a retiree, decided to go for a walk near his home. Tragically, he never returned and could not be found. Upon his disappearance, R became an absentee under art. 84 of the Civil Code of Québec (“C.C.Q.”) and T, his former de facto spouse, universal legatee and the liquidator of his succession, was appointed as his tutor. The presumption of life in art. 85 C.C.Q. required R’s former employer to continue making pension payments to him despite his disappearance, as the terms of his pension plan provided for payments until his death. Almost six years after his disappearance, R’s remains were discovered. The act of death recorded his death as having occurred the day after his disappearance. R’s former employer then sought reimbursement of the amount of pension benefits paid to R between the day after his disappearance and the date of the last payment. The trial judge held that the payments made after the recorded date of death were to be considered not due — as the three conditions that had to be fulfilled in order to make out a claim for receipt of a payment not due were met — and were therefore subject to restitution. The Court of Appeal substantially upheld the trial judge’s decision.

Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Abella, Karakatsanis, Gascon, Rowe and Martin JJ.:

The pension plan unambiguously contemplated the termination of benefits upon R’s actual death, not the date his death was officially recognized. On the plain language of the plan, R was not entitled to benefits following the month of his death. The rebuttal of the presumption of life retroactively extinguished R’s entitlement to the pension payments made while he was an absentee. Because the legal basis for the payments evaporated, R’s former employer’s claim for receipt of a payment not due under art. 1491 C.C.Q. must succeed: assessed retrospectively, the payments were made in error and in the absence of any debt.

Under the C.C.Q., an absentee is a person who, while domiciled in Quebec, ceases to appear there, without giving news of himself or herself, and without it being known whether he or she is still alive. Quebec’s current absence regime is a relatively modern innovation and marked a fundamental shift in the traditional Quebec law on absence. No longer is an absentee considered to be neither alive nor dead. Instead, art. 85 C.C.Q. provides that an absentee is presumed to be alive for seven years following his or her disappearance, unless proof of death is made before then, and he or she enjoys full juridical personality during this period. Where proof of death is made within seven years of disappearance, in which case the presumption of life is rebutted, rights and obligations premised on the absentee’s continued existence while he or she is presumed alive are retroactively extinguished from the true date of death.

The wording of art. 85 provides limited guidance on the question of retroactivity by the fact that it states that an absentee is presumed to be alive for seven years unless proof of his death is made before then, and not until proof of his death is made. But this textual clue that the rebuttal of the presumption has retroactive effect is reinforced by wider considerations. First, art. 85 is clear on its face that the presumption of life will be rebutted by proof of death made within the seven‑year period. The presumption of life is therefore a simple presumption — that is, a legal presumption of fact lasting for seven years which may be rebutted by proof to the contrary or confirmed by the absentee’s return. Article 85 protects an absentee for a limited period — but in establishing a simple presumption, it creates no permanent rights for that absentee. When rebutted, the presumption falls away and is replaced with reality. Nothing in the C.C.Q. dictates that reality should be ignored or juridical personality allowed to continue past death. The C.C.Q. would need to be explicit in order for reality to be ignored in such a manner. Contrary to the French Civil Code, which contains an express provision indicating that the rebuttal of the presumption of life operates prospectively, there is no similar provision in the C.C.Q.

Second, when, in other parts of the absence regime, the C.C.Q. intends that reality be ignored, this is stated expressly. In particular, the declaratory judgment of death mechanism clearly illustrates when a legal fiction will triumph over the true state of affairs to prioritize certainty. In that situation, the C.C.Q. allows a declaratory judgment of death to be pronounced, regardless of whether the absentee’s death may be held to be certain, when the presumption is neither confirmed nor rebutted within seven years of an absentee’s disappearance. Inversely, the presumption of life is a mechanism that primarily protects an absentee’s interests in the hope that he or she will return, but allows the true state of affairs to prevail when that outcome is no longer possible. The Quebec legislature, in drafting the absence regime, has chosen seven years as the key point at which a legal fiction is allowed to prevail in most respects over the true state of affairs.

Third, retroactivity is consistent with the purposes of the presumption of life — injecting stability into what would otherwise be an unclear and unsettled state of affairs, and protecting the absentee’s interest. If the presumption is rebutted with retroactive effect, both of these purposes are advanced. A prospective approach overshoots these purposes. The fact that retroactivity leads to some uncertainty over a small subset of transactions or circumstances does not topple or undermine the transactional stability sought by the presumption of life. In contrast to the older absence regime, the two distinct phases of the current absence regime offer simplicity and stability so that transactions can be conducted without contentious debate or a complex web of rules. While a prospective approach would preserve the absentee’s interests, it would also transform the presumption into a source of substantive rights to generate wealth for the absentee’s succession.

Fourth, interpreting the rebuttal of the presumption as occurring with retroactive effect ensures that, within the seven‑year period, all concerned individuals receive only what they are entitled to, in accordance with the true state of affairs. Conversely, if the rebuttal of the presumption had only prospective effect, restitution for payments premised on the absentee’s existence, made when the absentee was, in reality, both factually and legally dead, would be impossible. A prospective approach would generate windfalls not intended by the absence regime.

Because most obligations must be performed regardless of whether an absentee is alive or not, most of an absentee’s dealings during the absence period will remain unaffected by the rebuttal. However, a small subset of transactions — namely payments that are either received or made by virtue of the absentee’s presumed existence during the absence period — are affected when the presumption of life is rebutted. The very basis for these kinds of obligations, which are directly linked to and premised upon continued existence, retroactively evaporates. There is no direct route from rebutting the presumption of life to any provision which deals with the restitution of prestations. Still, the remedy for receipt of a payment not due is available in such a situation, even when some of the requisite elements of that claim are not present at the time of payment but instead surface at a later date.

There are three essential elements to any claim for receipt of a payment not due under art. 1491 C.C.Q.: (1) there must be a payment; (2) the payment must be made in the absence of debt between the parties; and (3) the payment must be made either in error or under protest to avoid injury. When all three requirements are met, restitution will follow under art. 1492 C.C.Q., in accordance with the rules for the restitution of prestations. The absence of debt requirement is essential to the analysis. An absence of debt is what makes a payment “not due”. But the mere absence of a debt between the parties is not enough. The payment must also have been made in error or under protest. Where there is, in fact, no obligation, the payer is usually in error. Once an absence of debt is proven by the payer, it falls to the payee to prove that the payment resulted from a liberal intention. If the payee cannot prove that the payer made a payment while being aware that there is no obligation to do so, the payment is deemed to be made in error and not due. Error prevents art. 1491 from being wielded as a tool to unilaterally conscript others into paying for services under the pretence of seeking restitution.

Under the circumstances, art. 1491 calls for a retrospective approach. The requirements for receipt of a payment not due must be assessed retrospectively from the time of the claim and with the knowledge of the true state of affairs. Where a debt existed at a certain time but the basis for it has subsequently fallen away, the existence of the debt must be determined retrospectively. To meet the goals of the restitution regime, a court should focus on whether the basis for this debt remained intact at the time of the claim. A retrospective approach to art. 1491 fits seamlessly into the broader framework and objectives of similar restitutionary tools throughout the C.C.Q. The thread that runs through all of these tools is that a payment is made under an entirely valid and genuine obligation that later falls away due to some subsequent event. Restitution becomes available as a result of an unanticipated or abnormal event. There is no indication that art. 1491 works differently from these other similar restitutionary mechanisms. Assessing absence of debt contemporaneously with payment in such a case would frustrate the aims of art. 1491 and make it an anomaly within the wider family of restitutionary mechanisms in the C.C.Q. Without retrospectivity, once valid payments would be forever immunized and parties would be unable to recover payments that were not due, allowing undue payments and windfalls to find refuge just beyond the provision’s reach.

Per Moldaver, Côté and Brown JJ. (dissenting):

The appeal should be allowed. There is no basis in the C.C.Q. to order the tutor to return the monies received from the former employer; the rebuttal of the presumption of life signified the extinction of the former employer’s obligation only with respect to continuing (that is, future) pension payments. Articles 1491 and 1492 C.C.Q. cannot be adjusted to allow the courts to go back in time to find that the former employer’s payments to the absentee were made in error, with the effect of unwinding rights and obligations that were validly due at the time they were performed. The former employer’s claim of restitution under the receipt of a payment not due provisions of the C.C.Q. must therefore fail.

The rebuttal of the presumption of life in art. 85 C.C.Q. cannot be with retroactive effects on the substantive rights and obligations of the absentee. If proof of the absentee’s death is made before the expiry of the seven‑year period of absence, the presumption of life is rebutted only prospectively, such that no right or obligations premised upon the absentee’s existence can be claimed or executed for the future, that is, for the remainder of the seven‑year period.

A prospective approach is consistent with the modifications made to the absence regime between the Civil Code of Lower Canada (where uncertainty persisted throughout a 30‑year period of absence and made it impossible for anyone to claim a right accruing to an absentee during this time) and the C.C.Q. (where the presumption of life injects certainty during a 7‑year period of absence and ensures rights and obligations of the absentee are valid until the time the presumption is rebutted). The Civil Code of Lower Canada’s absence regime was unduly complex, inflexible and — most importantly — riddled with persistent uncertainty. Difficulties with the regime led to revisions. Under the C.C.Q., the absentee is automatically presumed to be alive for seven years following his or her disappearance. The presumption of life contained in art. 85 represented a substantial change to the law on absence in Quebec. It is this presumption which fosters certainty by ensuring that absentees are capable of acquiring rights and being bound by obligations. No longer does the right to claim pension benefits during an absence depend on the claimant proving that the absentee was, in fact, alive at the time the right accrued. It is sufficient, for the acquisition of a right by an absentee during his or her absence, to show that such absentee was presumed at law to be alive at the time the right accrued to him or her. Whether through forced performance via court order, or through voluntary performance by a person bound to comply with the law, the rights and obligations of an absentee benefit from an absolute presumption of validity while the presumption of life operates.

The presumption of life ceases to apply after seven years of absence, as it is displaced by a presumption that the absentee is dead. To obtain a declaratory judgment of death seven years after the absentee’s disappearance, it is not necessary to bring proof positive of the absentee’s death, precisely because the absentee is by then presumed to be dead; it is sufficient to prove the absence of the person and the fact that the absence has lasted seven years from the disappearance. This change to the law of absence brought the law of Quebec closer to that of Germany and of France. Another particularly important revision was that the presumption of death would take effect from the time of the declaratory judgment of death, and not from the time the absentee disappeared. The date fixed as the date of death is the date upon expiry of seven years from the disappearance. The operation of the presumption of death and of the declaratory judgment of death does not displace the presumption of life which was in force during the seven‑year period of absence. Although the date of departure of the absentee was perhaps less arbitrary for determining the date of death, that of the declaratory judgment of death was more certain. The retroactive nature of the presumption of death was rejected because it would have the effect of validating all irregular acts performed since the departure of the absentee. This general rule of non‑retroactivity of the presumption of death is subject only to explicit exceptions.

A prospective approach also accords with the longstanding presumption against retroactivity in statutory interpretation. Given the limited guidance to be found in the text of art. 85, and given that the text of art. 85 and the context of the C.C.Q. do not expressly provide for or support retroactivity, the starting point should be the longstanding presumption against retroactivity. Retroactivity must be grounded in clear legislative intent. To the contrary, there is no need for an express provision to conclude that the presumption of life operates prospectively. The retroactive effects of the rebuttal of the presumption of death and of the annulment of the declaratory judgment of death on substantive rights and obligations are expressly provided for by the C.C.Q. This stands in stark contrast to the absolute silence of the C.C.Q. on the issue of whether the presumption of life can be rebutted with retroactive effects on the substantive rights and obligations of the absentee. One simply cannot infer from an exception a general rule of retroactivity for all purposes whenever the true date of death is known. The absence of express statutory text directing retroactive application of the rebuttal of the presumption of life does not support retroactivity, but rather militates against it. The rule of law requires, as a general principle, that rights and obligations as they exist at a certain point of time should not be affected by subsequent changes in circumstances.

A prospective approach moreover accords with the related absence regimes of France and of Germany. Both the Quebec and French regimes are inspired by the German model, and each manifestly reaches similar results on similar issues. Given their common Germanic inspiration, the C.C.Q. is expected to reach a result similar to the French Civil Code, which expressly provides that rights acquired without fraud on the basis of the presumption of absence may not be called in question when the death of the absentee is established or judicially declared, whatever the date fixed for the death may be. A clear provision expressly providing for a presumption of life renders unnecessary and, indeed, superfluous, the existence in the C.C.Q., of a provision equivalent to the one in the French Civil Code. In the absence of an express provision supporting a retroactive approach, there is no reason to isolate Quebec from the rest of the civil law word and from the European trend which inspired the C.C.Q. at the time of its adoption.

Finally, a prospective approach is consistent with, and indeed compelled by, the three purposes of the absence regime and the role of the tutor, and related third parties, in furthering those purposes. The presumption of life seeks, while it is in force, to inject certainty and stability into what would otherwise be an unclear and unsettled state of affairs. A precarious state of affairs, introduced into the absence regime if the presumption of life is rebuttable with retroactive effects, is simply incompatible with the certain state of affairs that the absence regime in general and the presumption of life in particular were intended to achieve. In interpreting the C.C.Q. in a way that reflects the true state of affairs, certainty — a significant purpose of the absence regime — is sacrificed on the altar of accuracy. Not knowing whether the income might have to be returned at some point within seven years, the tutor cannot confidently honour the absentee’s obligations, particularly those obligations which could not be the object of an order for restitution in favour of the absentee if the presumption of life is rebuttable with retroactive effects. This undermines the second purpose of the absence regime in general and of the presumption of life in particular, being to protect the interests of the absentee by preserving them for his or her possible return. Imposing retroactive effects on the rights of the absentee paralyzes the tutor, who can no longer safely use the absentee’s incoming revenue streams to discharge his or her obligations as they come due, thereby defeating the purposes of the regime. It represents the antithesis of the certainty which the absence regime was intended to achieve, and it undermines the role a tutor is expected to fulfill in managing an absentee’s affairs. Under a retroactive approach, third parties can no longer safely use the incoming monies, because if the absentee is discovered within seven years to have in fact been dead, the monies must be returned. Such an approach constitutes not only a judicial repeal of the presumption of life as far as rights of an absentee are concerned, but also constitutes such an impermissible repeal as far as obligations of an absentee are concerned. If avoiding windfalls for the absentee’s succession was a concern underlying the absence regime, the legislator would have enacted — upon expiry of the seven‑year delay and absent any return of the absentee — a presumption of death retroactive to the day of disappearance, and the law would require the date of death to be fixed not at the date upon expiry of seven years from the disappearance but at the date of the disappearance. Therefore, avoiding windfalls for the absentee’s succession is simply not a concern underlying the absence regime. Occasional windfalls are an inevitable effect of the certainty objective which informs the whole of the absence regime. Moreover, the use of the term “windfall” fails to recognize the source of the entitlement — a right acquired without fraud.

Adjusting the traditional requirements of art. 1491 C.C.Q. is rendered necessary under the retroactive approach in order to solve the problem which arises from the conclusion that the presumption of life may be rebutted with retroactive effects on the substantive rights and obligations of the absentee, as art. 85 does not expressly create an obligation to make restitution. It is a departure from existing law and jurisprudence. The three conditions that must be met before a person who received a payment must restore it to the person who made it should normally be interpreted cautiously, if not restrictively. Absent any remedy, the device which should be used to compensate an impoverished person at whose expense another has been enriched is an action in unjust enrichment — and not an adjustment to the requirements of art. 1491 C.C.Q.

In the instant case, the absence of debt requirement was not met insofar as the payments made were legally due when they were paid by reason of the presumption in art. 85 C.C.Q. The error requirement was also not met. There was no mistaken belief that the payment was due when it was made. The tutor’s enrichment is justified: the pension benefits were paid in accordance with the presumption of life. The former employer did not meet its burden to prove that the tutor had the obligation to return the pension payments received.

Citation:                                             Threlfall v. Carleton University, 2019 SCC 50

SCC File No.:                                    37893

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

Joint Dissenting Reasons:                Côté and Brown JJ. (Moldaver J. concurring)

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17986/index.do

APPLICATION FOR LEAVE TO APPEAL GRANTED

38695

Estate of Bernard Sherman and the Trustees of the Estate and Estate of Honey Sherman and the Trustees of the Estate v. Kevin Donovan (Ont.)

Judgments and orders — Interlocutory orders — Stay — Privacy 

On December 15, 2017, Mr. Barry Sherman and Ms. Honey Sherman were found murdered in their Toronto home. Their deaths generated intense publicity. Applications for the issuance of a Certificate of Appointment of Estate Trustee were made to the court. The applicants also sought and obtained a Protective Order that restricted public access to the estate files. In July 2018, the respondent, Mr. Donovan, sought access to both estate files. He was advised that by judge’s order, access to the files was not possible. In response, Mr. Donovan and the Toronto Star sought a variation or termination of the Protective Order and the full unsealing of the court files. Their motion was dismissed and the files were ordered sealed for a period of two years. This decision was overturned on appeal. The applicants subsequently obtained a stay of the Court of Appeal decision.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38499

Her Majesty the Queen v. Jean Brodeur

(Que.)

Criminal law — Sentencing

In September 2017, the respondent, Jean Brodeur, pleaded guilty to charges of indecent assault and sexual assault. The acts were committed between 1979 and 1983, when the victim, the younger sister of his then spouse, was between the ages of 10 and 14 and he was between the ages of 26 and 30. The Court of Québec imposed a sentence of 18 months’ imprisonment on Mr. Brodeur, along with several orders. Mr. Brodeur appealed, arguing that the judge had not seriously considered a conditional sentence, had given undue weight to the objectives of denunciation and deterrence and had undervalued all the mitigating factors. The Court of Appeal allowed the appeal and replaced the sentence of 18 months’ imprisonment with a 22‑month conditional sentence to be served in the community. It found that its intervention was warranted because the Court of Québec judge had made an error in principle by de facto ruling out a conditional sentence, an error that had an actual impact on the sentence. In its view, the judge would have made a conditional sentence order if not for that error.

38568

Margaret Strang or Malgorzata Strang v. Her Majesty the Queen in Right of Ontario

(Ont.)

Courts — Jurisdiction — Vexatious litigant

Following her dismissal, the applicant Margaret Strang instituted many civil and criminal proceedings relating to events that had allegedly occurred while she was a provincial government employee. The proceedings concerned former coworkers, members or leaders of her union, lawyers and others. She alleged incidents involving assault, sexual assault, harassment, defamation and discrimination that had been committed by government employees on racial or ethnic grounds. Each of the civil proceedings was struck out for disclosing no reasonable cause of action or dismissed for being frivolous, vexatious or an abuse of process. In the case of the criminal proceedings, the 47 pre‑inquiry applications filed were withdrawn, stayed or dismissed. The respondent therefore brought an application to limit Ms. Strang’s ability to institute legal proceedings. The Superior Court made an order prohibiting her from continuing or instituting new civil or criminal proceedings without first obtaining leave from a judge of the Superior Court. The Court of Appeal varied the order so that it applied only to civil proceedings.

38692

Kimberly Y. Fawcett v. Attorney General of Canada

(F.C.)

Legislation — Interpretation — Compensation and benefits

Captain Fawcett and her husband are members of the Canadian Armed Forces. Upon Captain Fawcett’s return from maternity leave, they prepared mandatory Family Care Plans to accommodate their daycare needs and the Forces’ readiness requirements. To accommodate Captain Fawcett’s required earlier start time for work, her husband normally drove their son to daycare. He was ordered to arrive at work early on February 21, 2006 for readiness training for imminent deployment and could not drive their son to daycare. Captain Fawcett contacted her supervisor, informed him that she was activating her Family Care Plan and would be late for work. Her supervisor agreed. On the way to her son’s day care, she was involved in a catastrophic motor vehicle accident. Her son was killed and she suffered serious injuries, ultimately requiring amputation of her right leg above the knee. Captain Fawcett applied to the Department of Veteran Affairs Canada for benefits for disability resulting from a service‑related injury. A Canadian Forces Summary Investigation found that Captain Fawcett was on duty at the time of the accident but the injuries were not attributable to military service. Her application for disability benefits was denied. Captain Fawcett filed a grievance. The Chief of Defence Staff denied the grievance. The Federal Court dismissed an application for judicial review. The Federal Court of Appeal dismissed an appeal.

38721

Tiffany Peters v. John Chasty Principal, Peel District School Board, Robin Benmergui Vice Principal, Lola Gayle Vice Principal and Lana Del Maestro Track Coach

(Ont.)

Judgments and orders — Reasons — Appeals

In 2005, when she was a high school student and member of the track team, Ms. Peters was injured while she practiced long-jump techniques at the Bramalea Secondary School. She sued the school board and several employees, alleging that her injury was due to their negligence. The trial judge dismissed her action. Ms. Peters’ subsequent appeal was dismissed.

38636

Byeongheon Lee v. Canadian Tire Centre and Gene Simmons

(Ont.)

Civil procedure — Disposition without trial — Dismissal of action  

The applicant, Mr. Lee, commenced an action against the respondents, and others, as a result of his removal from a concert in Ottawa. Upon application by the respondents, a motion judge at the Ontario Superior Court of Justice dismissed the action against the respondents pursuant to rr. 57.03 and 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the applicant had not abided by the Rules of Civil Procedure and had failed to pay outstanding costs awards during the course of the legal proceedings. The Court of Appeal dismissed the applicant’s appeal.

38749

Darla-Jean O'Rourke v. Attorney General of Canada

(F.C.)

Social law — Social assistance — Canada Pension Plan  disability benefits

Ms. O’Rourke applied for a disability pension under the Canada Pension Plan  on March 18, 2015.  The Minister of Employment and Social Development approved her application with a deemed date of disability onset of December 2013, which was the maximum retroactivity period permitted by the governing legislation. She applied for additional retroactive benefits on the ground that she was incapable of applying earlier. Her request was denied. The General Division of the Social Security Tribunal dismissed her appeal on the basis that she had not been incapable under s. 60(8)  of the Canada Pension Plan, R.S.C. 1985, c. C‑8 , of forming or expressing an intention to make an application earlier than March 18, 2015. The Social Security Tribunal — Appeal Division dismissed her application for leave to appeal. Her application for judicial review was dismissed.  Her appeal from that decision was also dismissed.

38715

Brandon Marshall v. Her Majesty the Queen

(Ont.)

Criminal law — Charge to jury

The police charged Mr. Marshall with sexual assault, sexual assault causing bodily harm, and three other offences. The charges of sexual assault and sexual assault causing bodily harm are based on allegations of distinct sexual conduct alleged to have occurred on different dates. The charge to the jury reviewed the evidence of both alleged sexual assaults when addressing both the charge of sexual assault and the charge of sexual assault causing bodily harm. On the charge on sexual assault causing bodily harm, the judge did not instruct the jury on the subjective intent to cause bodily harm required to vitiate consent. The jury convicted Mr. Marshall of sexual assault, sexual assault causing bodily harm and forcible confinement. The Court of Appeal dismissed an appeal.

38735

Francis Cuggia and Groupe Ultra-Vie inc. v. Autorité des marchés financiers

(Que.)

Civil procedure — Appeals  

In 2007 and 2009, four clients of the applicants, Groupe Ultra‑Vie and Mr. Cuggia, filed an application for compensation with the respondent, the AMF, alleging that they had been victims of fraudulent overbilling between 2002 and 2007. The AMF determined that fraudulent tactics had in fact been used and compensated each of the claimants. On the basis that it was subrogated in the rights of the claimants so compensated, the AMF brought two judicial applications against the applicants. The Superior Court found that fraudulent tactics had been used and that Groupe Ultra‑Vie and Mr. Cuggia were liable in solidum. The Court of Appeal unanimously held that leave to appeal was required and that the appeal had been improperly initiated because leave had not been sought. It also found that the appeal had no reasonable chance of success.

38720

Lucyna Blicharz v. Patricia Livingstone, Louise Conrod also known as Louise Arik, Cole Smith, Leanne Smith, Alexandra Goodrich, Zbigniew Lewandowski, Alina Lewandowski, Bridge City Chrysler Dodge Jeep Ltd. and Chrysler Canada Inc.

(Alta.)

Charter of Rights  – Fundamental justice – Right to interpreter

Ms. Blicharz came to Canada from Poland in 2000 with her husband and two children.  In 2002, she found employment as a housekeeper at the local hospital, where she suffered several injuries while on the job that resulted in Workers’ Compensation Board claims.   Between 2005 and 2010, she was involved in the first of a series of five motor vehicle accidents.  She has not worked since June of 2005, claiming to have been permanently disabled and in constant pain.  Ms. Blicharz sued the owners and operators of all of the vehicles.  These actions were consolidated into one trial.  The trial judge awarded her damages for injuries suffered in two of the accidents.  Her appeal from that decision was dismissed.  The Court of Appeal also dismissed her subsequent motion for a review of that decision.

38719

Elizabeth Ann Johnston v. Paul Wayne Meyer

(N.B.)

Charter of Rights  — Right to equality — Family law — De facto spouses — Support

Mr. Meyer and Ms. Johnston started cohabiting in March 2006, and continued to live together until October 2015. In September 2017, Ms. Johnston filed an application, advancing claims for spousal support and a division of property based on the common law principles of resulting trust, constructive trust and unjust enrichment almost two years after the alleged date of separation. In reply, Mr. Meyer raised s. 112(3) of the Family Services Act, as a complete defence to the claim for spousal support, on the basis the claim was filed beyond the one year time period applicable to common law spouses. Ms. Johnston brought a motion seeking interim spousal support and she raised the issue of the constitutional validity under s. 15(1) of the Charter of s. 112(3) that imposed the one‑year limitation period. She claimed that s. 112(3) was discriminatory because it differentiated common‑law spouses on the basis of marital status and perpetuated the prejudice experienced by common‑law spouses based on the unfounded stereotype that common‑law relationships are less permanent and are less deserving than those in married relationships. Further, the violation of s. 15(1) did not meet the justification standard under s. 1 of the Charter because the deleterious effect of the limitation period imposed on common‑law spouses was not proportional to the objectives of the Family Services Act. The motion judge held that s. 112(3) of the Family Services Act violated s. 15(1) of the Charter because it imposed a limitation period on common‑law spouses which it did not impose on married spouses. The limitation period was discriminatory because it differentiated common‑law spouses on the basis of marital status.  Further, the Charter violation did not meet the justification standard under s. 1. Mr. Meyer’s appeal was dismissed.

38686

Galina Milova v. Minister of Canada Revenue

(F.C.)

Civil procedure — Appeals — Taxation

The applicant applied for an extension of time in which to file her notice of appeal from her income tax assessment. The Tax Court dismissed her application on the ground that it had no jurisdiction to grant such an order pursuant to s. 167(5) (a) of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp .). The applicant filed a Notice of Appeal from that decision on December 11, 2017 but did not file an appeal book. She was ordered to file her appeal book but did not do so. The Court of Appeal issued a Notice of Status Review on August 27, 2018, requiring her to file representations within 30 days as to why the proceeding should not be dismissed for delay. The Court of Appeal did not accept her explanation for the delay and dismissed her appeal.

38708

Wesley Quash v. Her Majesty the Queen

(Y.T.)

Criminal law — Sentencing — Considerations 

Mr. Smith was intoxicated and was walking down the street yelling. The applicant, Mr. Quash, asked “Why are you being so loud”? Mr. Smith disputed being loud, and then moved quickly towards Mr. Quash. Mr. Quash swung the blade of a pocket knife at Mr. Smith’s face cutting it from below the ear to the chin. The trial judge rejected Mr. Quash’s self‑defence argument and convicted him of aggravated assault. The sentencing judge imposed a sentence of ten months’ imprisonment and 30 months’ probation. A majority of the Court of Appeal allowed the sentence appeal and imposed a sentence of two years’ imprisonment with 30 months’ probation. Willcock J.A., dissenting, would have dismissed the appeal.

38668

Richard Henry Bain v. Her Majesty the Queen

(Que.)

Criminal law – Sentencing – Second degree murder – Parole eligibility

Mr. Bain, applicant, was convicted of murder and attempted murder in relation to his attack on a Montreal concert venue while the Parti Québécois celebrated its 2012 election victory. In reaching their verdict, the jury rejected Mr. Bain’s argument that he should not be held criminally responsible because he was in a psychotic state at the time he committed the acts and would not have known that what he was doing was wrong. The sentencing judge imposed the life sentence mandated by the Criminal Code  as well as a 20-year period of parole ineligibility. Mr. Bain appealed his sentence. Among other things, he argued that the trial judge’s failure to ask the jury for their recommendation on the appropriate parole ineligibility period, as required by s. 745.2  of the Criminal Code , constituted a serious legal error which warranted the court’s intervention. The Court of Appeal dismissed the appeal.

38725

Drew William McPherson v. Her Majesty the Queen

(N.S.)

Criminal Law

Mr. McPherson’s vehicle collided with a taxi. The taxi driver was injured and his passenger was killed. Mr. McPherson was found unconscious in his vehicle. A witness testified that she saw no one else in the vehicle and she saw no one else leave the vehicle. Mr. McPherson denied that he was the driver and contended that he was the victim of a plot to assassinate him and a plot to falsely convict him. A jury convicted Mr. McPherson of criminal negligence causing death, criminal negligence causing bodily harm, driving with blood/alcohol exceeding 80 mgs/100 mls causing death, and driving with blood/alcohol level exceeding 80 mgs/100 mls causing bodily harm. The Court of Appeal dismissed an appeal from the convictions.

38700

Louis Kakoutis and Effie Kakoutis v. TD General Insurance Company

(Ont.)

Judgments and orders — Summary judgments — Access to justice

On June 30, 2003, Mr. Kakoutis was injured in a motor vehicle accident. The respondent, TD Insurance, Meloche Mennox, paid some accident benefits to Mr. Kakoutis, but denied other benefits. Mr. and Ms. Kakoutis issued a claim for damages against TD Insurance on August 25, 2015, for denying benefits to Mr. Kakoutis. TD Insurance brought a motion for summary judgment on the basis that all claims were statute‑barred. That motion was granted and the action was dismissed. This decision was upheld on appeal.

38666

Philip James Miller v. Her Majesty the Queen in Right of Canada

(F.C.)

Limitation of actions — Armed forces — Explosion during 1974 cadet‑training camp run by Canadian military

In 1974, Mr. Miller, who was then 15 years of age, was one of a number of teenage army cadets attending a six‑week summer camp at Canadian Forces Base Valcartier, Quebec. The camp’s instructors included regular and reserve members of the Canadian Armed Forces. When the cadets, including Mr. Miller, were in an indoor facility being instructed in the safe handling of explosive munitions, a live grenade was mistakenly included in the box of inert ordinance. The cadets were permitted to handle those ordinance and, in particular, to pull the pin on the grenade. The grenade exploded, killing six cadets and injuring sixty‑five others. Mr. Miller was present, but not visibly injured. In June 2015, Mr. Miller commenced an action seeking damages and other relief for long‑term harm stemming from the incident and the Canadian Forces’ responses to it. The Crown’s statement of defence pleaded that the claim was statute‑barred under s. 39  of the Federal Courts Act, R.S.C. 1985, c. F‑7 , which imports provincial limitation periods “[e]xcept as expressly provided by any other Act”, and the Civil Code of Québec, S.Q. 1991, c. 64. The Crown sought leave to amend to plead the six‑month limitation period in s. 269(1)  of the National Defence Act, R.S.C. 1985, c. N‑5 , as an exception contemplated by s. 39(1)  of the Federal Courts Act . It also sought summary dismissal of the action as statute‑barred. The motions judge granted permission to amend the statement of defence and summary judgment, dismissing the action. The Court of Appeal dismissed Mr. Miller’s appeal.

38728

Paul Abi-Mansour v. Attorney General of Canada

(F.C.)

Administrative Law – Appeals – Judicial review – Boards and tribunals

Mr. Paul Abi-Mansour worked with the Deputy Minister of the Department of Fisheries and Oceans. He was in the area of selection for two appointment processes, but was unable to apply because the Department chose non-advertised processes. Mr. Abi-Mansour filed a complaint before the Federal Public Sector Labour Relations and Employment Board, alleging that the Department abused its authority. The Board dismissed his complaints. A single judge of the Federal Court of Appeal, in a first order, dismissed Mr. Abi-Mansour’s motion for an order granting leave to commence a judicial review application of the Board’s decision. In a second order, the Federal Court of Appeal dismissed Mr. Abi-Mansour’s motion for an order permitting him to file a notice of appeal to a panel of three judges from the first order, as it found that there was no statutory basis to allow his motion.

38658

Robert P.J. Day v. Ezra Levant

(Ont.)

Judgments and orders — Summary judgments — Torts — Defamation

Mr. Levant is the principal of an online media outlet, Rebel News, a site that comments on political and social issues, expressing right‑leaning views. The applicant, Mr. Day, has been a regular participant on social media and expressed his more left‑wing views almost exclusively on Twitter. Between May and June 2016, Mr. Day posted tweets highly critical of Mr. Levant and of Rebel News relating to their online campaign to raise money for the victims of the Fort McMurray forest fires. Mr. Day alleged that Mr. Levant was engaged in a scam of “unadulterated sleaziness” so that he could improperly take advantage of other donors’ charitable tax receipts and was enriching himself at the expense of forest fire victims. Mr. Levant commenced an action in defamation, claiming damages. Mr. Day brought a motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to have the action dismissed. Mr. Day’s motion was dismissed.  This decision was upheld on appeal.