APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37855

L’Oratoire Saint-Joseph du Mont-Royal v. J. J. - and - La Province canadienne de la Congrégation de Sainte-Croix - and between - La Province canadienne de la Congrégation de Sainte-Croix v. J. J. - and - L’Oratoire Saint-Joseph du Mont-Royal (Que.)

Civil procedure ‒ Class action ‒ Action for damages for sexual assault

The respondent J.J. attended the Notre-Dame-des-Neiges elementary school for four years, from 1951 to 1955, when he and his family were living in a dwelling owned by the applicant and intervener La Province canadienne de la Congrégation de Sainte-Croix that was near the applicant and intervener L’Oratoire Saint-Joseph du Mont-Royal. He alleges that he was sexually assaulted by members of the Congrégation de Sainte-Croix during that time, both at the elementary school and at the Oratoire. The respondent allegedly kept silent about the sexual assault until he saw a report in 2011 on the sexual assaults committed by members of the Congrégation de Sainte-Croix that had been prepared by the public affairs show Enquête and broadcast on Radio‑Canada. Convinced that hundreds of people had also been sexually assaulted by members of the Congrégation de Sainte-Croix, the respondent asked a court to authorize a class action against the applicants and interveners and to appoint him as representative plaintiff. The Superior Court dismissed the motion to authorize a class action, but the Court of Appeal allowed the appeal and authorized the class action.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37848

Delizia Limited v. Nevsun Resources Ltd. (F.C.)

Private International Law – Arbitration – Foreign Judgments

The applicant obtained an arbitration award for an outstanding debt from its sale of military aircraft to Eritrea. After successfully moving ex parte to register the award in the Federal Court for purposes of enforcement, the applicant brought an ex parte motion against the respondent for a provisional order of garnishment. The applicant was subsequently granted a final order of garnishment ordering the attachment of all debts owing an accruing by the respondent to Eritrea, including those owed to ENAMCo, a state-controlled Eritrean company. Through a joint venture (“BMSC”), ENAMCo and a third-level, indirect subsidiary of the respondent own 40% and 60% respectively of a mine in Eritrea. The respondent argued that BMSC, not Nevsun, owed debts to Eritrea. The Federal Court allowed the appeal, holding that since there was no basis upon which to pierce the corporate veil, there were no debts owing by the respondent to which a garnishment order could attach. It also held that the garnishment orders were nullities because Eritrea had not been served in accordance with the SIA. The Federal Court of Appeal dismissed the appeal.

37849

Delizia Limited v. Sunridge Gold Corp. (F.C.)

Private International Law – Arbitration – Foreign Judgments

The applicant obtained an arbitration award for an outstanding debt from its sale of military aircraft to Eritrea. After successfully moving ex parte to register the award in the Federal Court for purposes of enforcement, the applicant brought an ex parte motion against the respondent for a provisional order of garnishment (“POG”). The applicant was subsequently granted a final order of garnishment ordering the attachment of all debts owing and accruing by the respondent to Eritrea, including those owed to ENAMCo, a state-controlled Eritrean company. ENAMCo and a second-level indirect subsidiary of the respondent own 40% and 60% respectively of the shares of Asmara Mining Share Company (Eritrea), which owns a mine in Eritrea. The prothonotary found the issuance of shares of that entity had effectively been a sale by the respondent to Eritrea, contrary to the POG. The Federal Court allowed the appeal, holding that since there was no basis upon which to pierce the corporate veil, there were no debts owing by the respondent to which a garnishment order could attach. It also held that the garnishment orders were nullities because Eritrea had not been served in accordance with the SIA. The Federal Court of Appeal dismissed the applicant’s appeal.

37764

Todd Henry McAuley v. Craig Genaille, as the executor of the Estate of Lori Ellen Sinclair, The Public Guardian & Trustee as Lititation Guardian for Todd Jr. Rhyse McAuley (an infant) (Man.)

Constitutional law – Charter of Rights – Wills and estates

In January 2013, Todd Henry McAuley (“Todd Sr.”) applied for dependants’ relief against the estate of Lori Ellen Sinclair under the Dependants Relief Act, C.C.S.M. c. D37, as litigation guardian of his and Ms. Sinclair’s 14 year-old son, Todd Jr. Rhyse McAuley (“Todd Jr.”), and in his own right as Ms. Sinclair’s former common law spouse. The Public Guardian and Trustee (“PGT”) subsequently replaced Todd Sr. as litigation guardian for Todd Jr. In his capacity as executor of Ms. Sinclair’s estate, Craig Genaille opposed both applications, submitting that no evidence had been adduced to show that either Todd Jr. or Todd Sr. were in financial need, but nevertheless agreed that $20,000 would be made available from the estate for Todd Jr.

The Court for Queen’s Bench of Manitoba granted the application in respect of Todd Jr., ordering monthly payments be paid from the estate until his 18th birthday and $50,000 be paid to the PGT to be held in trust. The court dismissed Todd Sr.’s application on the basis that he had not made out a case for dependants’ relief. The Manitoba Court of Appeal allowed Mr. Genaille’s appeal and the PGT’s cross-appeal in part, setting aside the monthly support order and substituting an award of $20,000 for the original $50,000 award. The Court dismissed Todd Sr.’s cross-appeal in respect of his own application for dependant’s relief.

37767

Cassels Brock & Blackwell LLP v. Trillium Motor World Ltd. (Ont.)

Law of professions – Barristers and solicitors – Duty of loyalty

During the 2009 financial crisis which impacted the automotive industry, General Motors Canada Limited (“GMCL”) sought to restructure in order to benefit from a government bailout. The law firm Cassels Brock Blackwell LLP represented Industry Canada in respect of a bailout to support GMCL. Cassels also represented a group of GMCL dealers but did not disclose to the dealers its pre-existing retainer with Canada. GMCL’s restructuring plan involved a reduction in its dealer network. As part of this plan, GMCL delivered to the dealers a Wind-Down Agreement (WDA), intended to terminate their franchises and eliminate its exposure to dealer claims in exchange for a payout. A majority of the dealers signed the WDAs and received $126 million combined.

That same year, Trillium Motor World Ltd., a GMCL dealer, commenced class proceedings against Cassels on behalf of all dealers who had signed the WDAs. Trillium claimed that Cassels had breached its contractual and fiduciary duties to the dealers, including its duty of loyalty. It alleged that, but for these breaches, the dealers would have negotiated, collectively, a better deal and sought damages for this lost chance. Cassels argued that its retainer with the dealers was contingent on GMCL becoming insolvent, which did not occur, and denied the alleged breaches. McEwen J of the Ontario Superior Court of Justice allowed the class action and awarded $45M in damages. The Court of Appeal dismissed the appeal on liability, allowed the appeal on quantification of damages and dismissed the cross-appeal.

37643

Robert New v. Canada (Minister of Justice), Attorney General of Canada on behalf of the United States of America (B.C.)

Extradition – Committal hearings – Evidence

The applicant is being sought by the United States for extradition to stand trial in Washington State for conduct corresponding to the Canadian offence of sexual assault which was alleged to have been committed in Redmond, Washington. The applicant had been charged regarding alleged conduct which took place in Surrey, B.C., but the charges were stayed by the Crown. The extradition judge ordered the committal of the applicant into custody to await surrender to the United States. The Minister of Justice ordered the applicant’s surrender. The Court of Appeal dismissed the applicant’s appeal and his application for judicial review.