APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No.

Case Name

Province of Origin

Keywords

38624

Procureure générale du Québec, et al. c. Yvon Maheux

QC

Courts — Jurisdiction — Standing

38625

Her Majesty the Queen v. S.C.

ON

Criminal law — Sentencing — Principles of sentencing

38641

City of Edmonton v. Alvarez & Marsal Canada Inc., in its capacity as Court-appointed Receiver of the current and future assets, undertakings and properties of Reid-Built Homes Ltd, et al.

AB

Bankruptcy and insolvency — Receiver

 

38652

R. Gauld Joseph v. Oumaima Bourghol, Mustapha Bourghol, Vincent Karim, Valérie Tellier and Janie Boudreault

QC

Civil procedure — Appeals — Jurisdiction of Court of Appeal

38659

Linda Gardipy v. Saskatchewan Government Insurance

SK

Civil procedure — Costs — Legal fees and disbursement

38592

United Soils Management Ltd. v. Katie Mohammed

ON

Judgments and orders — Summary judgment

38650

United Soils Management Ltd. v. Kayt Barclay

ON

Judgments and orders — Summary judgment

38558

Mark John Chandler v. Attorney General of Canada on behalf of the United States of America

 

BC

Criminal law — Extradition — Committal hearing

38657

Beacon Publishing Inc., o/a Frontline Safety & Security, et al. v. Jerry Bradwick Montour, et al.

ON

Judgments and orders — Summary judgments — Torts

38604

A.W.B. v. Her Majesty the Queen

AB

Criminal law – Sentencing – Young person

38645

Tony Samaroo and Helen Samaroo v. Canada Revenue Agency

BC

Torts – Malicious prosecution

38676

F.H. v. J.A.

QC

 Family Law — Custody — Child support

38680

Larry Robert Heather v. Naheed Kurban Nenshi

 

AB

Municipal law – Elections – Controverted elections

38640

Veolia Water Technologies, Inc., successor by merger to HPD, LLC v. K+S Potash Canada General Partnership

SK

Contracts — Commercial contracts — Letters of credit

38702

Hanna Engel and Ura Greenbaum v. Curateur public du Québec

QC

Civil Procedure — Access to documents

38712

Brana Giancristofaro-Malobabic, MonRoi inc. and 9114-8965 Québec inc. v. Daniel F. O’Connor

 

QC

Commercial law — Corporations — Oppression

 
 
 

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38624

Attorney General of Quebec and Pierre Reid, in his capacity as directeur général des élections du Québec v. Yvon Maheux

- and -

Quebec Liberal Party, Parti Québécois, Coalition Avenir Québec – l’équipe François Legault and Québec solidaire (Que.)

Courts — Jurisdiction — Standing

In October 2017, the respondent, Mr. Maheux, received a statement of offence from the applicant Directeur général des élections in which it was alleged that he had made a contribution to a political party that exceeded the limit provided for in s. 91 of the Election Act. A record was opened in the Court of Québec after Mr. Maheux pleaded not guilty. Mr. Maheux then applied to the Court of Québec for a declaration that sections 91, 564.2, 567, 568 and 569.1 of the Act were null or of no force or effect in relation to him. After that, he brought an application for judicial review in the Superior Court in which he challenged the constitutionality of sections 1(5), 91, 93.1(2), 564.2, 567, 568 and 569.1 of the Act. The applicants, the Attorney General of Quebec and the Directeur général des élections, filed a joint motion in the Superior Court to have Mr. Maheux’s application dismissed as regards sections 91, 564.2 and 567 of the Act and to have the proceeding stayed as regards the other sections.

The Superior Court dismissed the motion of the Attorney General of Quebec and the Directeur général des élections to dismiss Mr. Maheux’s application for judicial review. Parent J. held that the terms of the application to the Superior Court greatly exceeded the scope of the constitutional challenge in the Court of Québec. A majority of the Court of Appeal (Bouchard and Morissette JJ.A.) dismissed the appeal. In their view, the application judge had committed no error. Ruel J.A., dissenting, would have allowed the appeal.

 

38625

Her Majesty the Queen v. S.C. (Ont.)

Criminal law — Sentencing — Principles of sentencing — Cumulative punishments

S.C. pleaded guilty to 8 counts of sexual assault, 8 counts of making child pornography and 1 count of possession of child pornography. The offences were committed against 8 children.  Police found pornographic photos and videos of children on his computer. Section 718.3(7)  of the Criminal Code  came into force on July 17, 2015, and applies in respect of four of the children. Section 718.3(7)  requires consecutive sentences if the terms of the provision are met. Crown counsel sought a sentence with 15 years of imprisonment. The trial judge imposed three consecutive sentences totalling 9 years of imprisonment. The Court of Appeal dismissed an appeal from the sentences.

38641

City of Edmonton v. Alvarez & Marsal Canada Inc., in its capacity as Court-appointed Receiver of the current and future assets, undertakings and properties of Reid-Built Homes Ltd., 1679775 Alberta Ltd., Reid Worldwide Corporation, Builder’s Direct Supply Ltd., Reid Built Homes Calgary Ltd., Reid Investments Ltd. and Reid Capital Corp. (Alta.)

Bankruptcy and insolvency — Receiver — Discretionary power

 

The respondent Alvarez & Marsal Canada Inc. is the receiver appointed by the court under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3  (BIA ) for the respondents Reid‑Built Homes Ltd, 1679775 Alberta Ltd, Reid Worldwide Corporation, Builder’s Direct Supply Ltd, Reid Built Homes Calgary Ltd, Reid Investments Ltd, and Reid Capital Corp. collectively referred to as Reid‑Built, a residential home builder. Reid‑Built was placed in receivership by court order dated November 2, 2017. Later in November 2017, the receiver applied for an order granting it the power to proceed with repairs and maintenance and to complete Reid‑Built’s properties as well as granting it a first ranking super priority charge against any corresponding property for any expenses incurred. Those expenses are to be included in the receiver’s claim for fees and disbursements. When the receiver’s application was heard on November 29, 2017, the applicant, City of Edmonton applied to modify the property powers order or alternatively for a declaration that its statutory lien for unpaid property taxes under the Alberta Municipal Government Act ranks ahead of the receiver’s charge on Reid‑Built properties. Although the chamber judge granted the receiver’s application at the hearing on November 29, 2017, he reserved his decision on the issues concerning the application filed by the City of Edmonton. On February 21, 2018, the chamber judge granted the application and concluded that the receiver’s charge and the borrowing power does not rank ahead of the City of Edmonton’s property tax claim. The Court of Appeal allowed the appeal and concluded that the receiver had a super priority for its fees and disbursements in accordance with the original receivership order over the City of Edmonton’s property tax claims.

38652

R. Gauld Joseph v. Oumaima Bourghol, Mustapha Bourghol, Vincent Karim, Valérie Tellier and Janie Boudreault (Que.)

Civil procedure — Appeals

 

The applicant, Mr. Joseph, is a lawyer. In December 2018, the Superior Court dismissed his defamation action against the respondents and found it to be abusive within the meaning of arts. 51 et seq. of the Code of Civil Procedure. Mr. Joseph was claiming $325,000 from the respondents, whom he had sued for a client, and from their lawyers because of [translation] “false, degrading, malicious and mostly vile” allegations made about him in a motion in revocation of judgment filed by them. After finding that Mr. Joseph had to apply for leave because his action had clearly been dismissed for being abusive (art. 30 para. 2(3) C.C.P.), the Court of Appeal denied leave to appeal.

38659

Linda Gardipy v. Saskatchewan Government Insurance

- and -

Automobile Injury Appeal Commission, appointed pursuant to the Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (Sask.)

Civil procedure — Costs — Legal fees and disbursement

 

The applicant, Ms. Linda Gardipy was injured in a motor vehicle accident on January 31, 2011. At the time of the accident, Ms. Gardipy was a full‑time student in the Level 2 Adult Basic Education Program at North Regional College in Rosthern, Saskatchewan. Accordingly, she received benefits under the no fault provisions of the Automobile Accident Insurance Act, RSS 1978 c. A‑36 (AAIA). In early 2013, the respondent, Saskatchewan Government Insurance issued decision letters concerning the right to benefits of Ms. Gardipy under the AAIA. A decision letter dated February 25, 2013, was issued to notify Ms. Gardipy that she was entitled to a loss of studies benefit in the amount of $4,544 pursuant to s. 121(2)(b) of the AAIA on the basis that she was studying at a secondary level of education. Later, a decision letter dated April 30, 2013, was issued to advise Ms. Gardipy that her loss of studies benefit mentioned in the previous decision letter had been quantified on the basis that she was attending an upgrading facility and not a post‑secondary level school at the time of the accident. Ms. Gardipy appealed those decision letters to the Automobile Injury Appeal Commission. The Commission allowed both appeals and awarded costs, inclusive of Ms. Gardipy’s legal costs, in the amount of $2,500. The Court of Appeal dismissed the appeal of the Saskatchewan Government Insurance and the cross-appeal of Ms. Gardipy. On the cross‑appeal, the court concluded that the arguments of Ms. Gardipy regarding the automatic grant of full solicitor‑client costs for the successful claimant under s. 193(11) and (12) of the AAIA must fail.

38592

United Soils Management Ltd. v. Katie Mohammed (Ont.)

Judgments and orders — Summary judgment — Anti‑SLAPP legislation

United Soils Management Ltd. provides site remediation, excavation and special materials disposal services and operates a gravel pit near Stouffville. In August 2016, the Whitchurch‑Stouffville Town Council approved an amendment to United’s license, allowing it to dump material collected from small quantity sites and from hydro‑vac trucks. There was concern expressed by two members of the Town Council that the amendment permitted the dumping of material that could compromise the long term integrity of the local water supply. Ms. Mohammed shared this concern and posted and commented on two private Facebook group pages over about a three day period. She referred to the dumping of the material from the hydro‑vac trucks into the gravel pit site as potentially “poisoning our children”. A few days later, Ms. Mohammed received a letter from United’s lawyer demanding an immediate retraction and apology. On the same day, Ms. Mohammed deleted the word “poison” from the Facebook postings and added a comment to each post retracting her “defamatory and slanderous statements”. She also apologized. She then received United’s statement of claim alleging libel and seeking damages of $100,000, aggravated damages of $10,000; punitive damages of $10,000; special damages; and costs on a substantial indemnity basis. Ms. Mohammed brought a motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 for an order dismissing the action. Her motion was granted and that decision was upheld 

38650

United Soils Management Ltd. v. Kayt Barclay (Ont.)

Judgments and orders — Summary judgment — Anti‑SLAPP legislation

United Soils Management Ltd. provides site remediation, excavation and special materials disposal services and has operated a gravel pit near Stouffville Ontario since 2007.  On August 23, 2016, the Whitchurch‑Stouffville Town Council approved an amendment to United’s license that expanded its dumping rights at the gravel pit site, allowing it to dump material collected from hydro‑vac trucks. Some members of the community were concerned that the amendment was rushed through Town Council without adequate consideration of the possible safety issues for the community and that liquid from the hydrovac product could leach into the ground and contaminate the water supply. A closed Facebook page was created by concerned citizens to canvas environmental issues, promote discussion and to develop strategies to have the Town Council rethink the Hydrovac amendment. The respondent, Ms. Barclay, was an active member of this group. Since 2014, she, along with other members of the public had expressed concerns about United’s activities on the environment and whether the Town Council was levying adequate costs to permit dumping. On September 12, 2016, Ms. Barclay posted a comment on the Facebook Group site that one of the town councillors was “in the pocket” of United Soils. Shortly thereafter, she was served with United Soil’s statement of claim seeking, inter alia, $120,000 in damages.  Ms. Barclay brought a motion under s. 137.1 of the Courts of Justice Act, to have the action against her dismissed.  Her motion was granted and that decision was upheld on appeal.

38558

Mark John Chandler v. Attorney General of Canada on behalf of the United States of America (B.C.)

Criminal law — Extradition — Committal hearing

 

The United States of America requested the extradition of the applicant, Mr. Chandler, to stand trial in relation to conduct which corresponds to the offence of fraud in s. 380  of the Criminal Code . Mr. Chandler is alleged to have mounted an investment fraud scheme in which he is said to have pitched a high‑rise condominium development project to various victim investors. A certified record of the case (ROC) for prosecution summarizes evidence from an FBI agent and several witnesses, including three purported victims of the alleged fraud.

The extradition judge dismissed Mr. Chandler’s application for disclosure of documents from the requesting state, his application to reopen the disclosure application based on new evidence, and his application to adduce evidence. She accepted the Attorney General’s withdrawal of one aspect of the evidence from the ROC. She was satisfied the ROC established a prima facie case of the equivalent of fraud in Canada and ordered Mr. Chandler committed for surrender. The Court of Appeal dismissed Mr. Chandler’s appeal.

38657

Beacon Publishing Inc., o/a FrontLine Safety & Security, FrontLine Security Magazine, Edward R. Myers, Christina MacLean, Philip Murray, Scott Newark, Martin Rudner, John Doe and Jane Doe v. Jerry Bradwick Montour and Grand River Enterprises Six Nations Ltd. (Ont.)

Judgments and orders — Summary judgments — Torts — Defamation

In 2016, the applicants published a three‑part Publication on the connection between contraband tobacco, organized crime and terrorism in FrontLine Safety and Security Magazine in both electronic and hard copy formats. Mr. Montour and Grand River Enterprises Six Nations Ltd. own and operate Grand River Enterprises (“GRE”) which manufactures tobacco products on the Six Nations Reserve in southern Ontario. GRE is the largest Canadian exporter of tobacco and sells its products internationally. GRE was named in the Publication as a smuggler of contraband tobacco and associated with organized crime. Mr. Montour and GRE brought an action in defamation against the applicants, claiming $27 million in damages as a result of comments made about them in the Publications. Beacon brought a motion under s. 137.1 of the Courts of Justice Act (“CJA”) to have the action summarily dismissed. That motion was dismissed and the decision was upheld on appeal.

38604

A.W.B. v. Her Majesty the Queen (Alta.)

Criminal law – Sentencing – Young person 

The applicant is a non-status Indian. At the time of the offence he was 17 years old. The victim was a long-time friend of the applicant.  The applicant and the victim trafficked in drugs. The applicant, the victim and a passenger were in a stolen vehicle. The applicant exited the vehicle, pulled out a .22 calibre handgun and fired eight shots into the victim’s neck and torso. The applicant fled the scene and left the province. He has a criminal record and the offence was committed while the applicant was on probation. After a trial by judge and jury, the applicant was convicted of first degree murder. The respondent successfully applied to have the applicant tried as an adult. The applicant was sentenced as an adult to a life sentence with no eligibility for parole for 10 years. The sentence appeal was dismissed.

38645

Tony Samaroo and Helen Samaroo v. Canada Revenue Agency (B.C.)

Torts – Malicious prosecution

 

Mr. and Ms. Samaroo owned and operated a restaurant, nightclub, and motel in Nanaimo, B.C. Acting on a tip it received, the CRA investigated the Samaroos and their related closely held corporations for tax evasion during the years 2004-2006. An indictment was issued against them and their corporations under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), and the Excise Tax ActR.S.C. 1985, c. E-14, charging them with 21 counts of tax evasion. They were alleged to have skimmed $1.7 million from their business between 2004 and 2005.  They were acquitted on all counts after a 19-day trial in Provincial Court. After their acquittal, Mr. and Mrs. Samaroo brought a civil action against the Canada Revenue Agency (“CRA”) and the Crown prosecutor, claiming that they intentionally and wrongfully investigated and prosecuted the Samaroos for tax evasion. The trial judge found that the test for the tort of malicious prosecution had been met and awarded the Samaroos aggravated and punitive damages against the CRA, together with their legal fees.  The claims against the Crown prosecutor and his law corporation were dismissed.  This decision was overturned on appeal and the Samaroos’ action was dismissed.

38676

F.H. v. J.A. (Que.)

 

Family Law — Custody — Child support

F.H. and J.A., parents of two daughters, sought exclusive custody, an order as to child support, and the right to obtain passports for the children and to travel without the consent of the other parent. The Superior Court granted J.A. exclusive custody, granted F.H. access rights, dismissed both requests concerning the exercise of parental authority, and ordered F.H. to pay J.A. child support. The Court of Appeal dismissed F.H.’s appeal, finding that F.H. failed to demonstrate that the trial judge committed an error in law or an overriding error of fact in his factual determinations and his exercise of discretion.

 

38680

Larry Robert Heather v. Naheed Kurban Nenshi (Alta.)

Municipal law – Elections – Controverted elections – Undue influence

Mr. Heather, applicant, is not represented. He was a mayoral candidate in the 2017 City of Calgary elections. Several weeks after the election, he applied on an ex parte basis for a fiat authorizing him to apply for an order in the nature of quo warranto – an inquiry into the authority by which a public office is held – challenging the legality of the election. Mr. Heather argued that Mayor Nenshi was guilty of undue influence, because he engaged in intimidation aided by a fraudulent device or contrivance through comments he made in publicly-accessible Facebook videos during a campaign rally to an audience of supporters, and during a radio interview. The impugned comments included assertions by Mayor Nenshi that “[t]here are forces out there in the community . . . to get people out who don’t believe in diversity,” “[t]o get people who might be racists, or haters, out to vote,” and that “we cannot allow for a vote that subverts democracy.” Accordingly, he argued that he had reasonable grounds for supposing that the election was not legal or was not conducted according to law, or for contesting the validity of the election of a member of the elected authority (Local Authorities Election Act, R.S.A. 2000, L-21,ss. 127(2)(a), (c)).The chambers judge dismissed the application. The Court of Appeal dismissed the appeal.

38640

Veolia Water Technologies, Inc., successor by merger to HPD, LLC v. K+S Potash Canada General Partnership (Sask.)

Contracts — Commercial contracts — Letters of credit

K+S Potash Canada [KSPC] entered into a contract with Veolia Water Technologies whereby Veolia agreed to design, supply, and commission a crystallization system for KSPC’s potash mine. Veolia created a letter of credit with KSPC as the beneficiary in December 2012. In July 2016, a steel frame supporting a large crystallizer collapsed at the KSPC mine site. The crystallizer had been designed and supplied by Veolia and KSPC believed Veolia to be responsible for the collapse. A second letter of credit was created in December 2016 by Veolia, again with KSPC as the beneficiary. In April 2018 KSPC filed a statement of claim seeking damages against Veolia in connection with the collapse. KSPC then made a demand on the first letter of credit in May 2018 and gave notice to Veolia that it intended to make a demand on the second letter of credit. In May 2018, Veolia filed a statement of claim in the Saskatchewan Court of Queen’s Bench alleging that KSPC had not satisfied the conditions necessary for it to make draws on either letter of credit. After filing the statement of claim, Veolia proceeded with a notice of application seeking an injunction prohibiting KSPC from drawing on either letter of credit. The Court of Queen’s Bench of Saskatchewan dismissed Veolia’s application and the subsequent appeal to the Court of Appeal for Saskatchewan was also dismissed.

38702

Hanna Engel and Ura Greenbaum v. Curateur public du Québec (Que.)

Civil Procedure — Access to documents — Amendment to proceedings

The applicants, Ms. Hanna Engel and Mr. Ura Greenbaum, are the children of the late Ms. Fanny Kogan who passed away in 1999. From 1989 until her passing, the respondent, the Public Curator of Quebec was appointed by the Superior Court of Quebec as the curator for Ms. Kogan. In 1999, the court appointed a liquidator for Ms. Kogan’s estate because she died ab intestate. In 2002, Mr. Greenbaum was declared a vexatious litigant with respect to proceedings taken against the liquidator. In 2005, the court rendered a judgment which settled, for all practical purposes, the estate of the deceased and discharged the liquidator. In addition, Ms. Engel was appointed liquidator for any remaining questions. In 2008, Ms. Engel filed an action for damages against the liquidator of her mother’s estate and the Public Curator of Quebec, alleging poor administration of her mother’s affairs and estate. In 2011, Ms. Engel’s action for damages was quashed and she was declared a vexatious litigant. In May 2018, Ms. Engel was authorized by the Chief Justice of the Superior Court of Quebec to file a motion for access to documents, as the liquidator of her mother’s estate, in order to obtain unrestricted access to all information gathered and retained by the Public Curator are related to her mother. Back in 2007, Ms. Engel had obtained eight boxes of documents from the Public Curator but some documents were redacted and therefore the information was unavailable. In October 2018, Ms. Engel filed an amendment to her motion in which she sought to change her capacity from the liquidator of her mother’s estate to that of an heir. Further, this amendment impleaded Mr. Greenbaum as an intervener (mis‑en-cause) in his capacity as heir to his mother’s succession. In response, the Public Curator of Quebec filed a motion in opposition to the amendment as well as an application to dismiss the motion for access to documents. The Superior Court of Quebec granted both the opposition to amend the motion for access to documents and the motion to dismiss the motion for access to documents. The Court of Appeal dismissed the application for leave to appeal.

 

38712

Brana Giancristofaro-Malobabic, MonRoi inc. and 9114-8965 Québec inc. v. Daniel F. O’Connor (Que.)

Commercial law — Corporations — Oppression — Refusal to issue shares

 

Between 2002 and 2005, the applicant, Ms. Brana Giancristofaro‑Malobabic, via her personal holding company 9114‑8965 Quebec Inc. (“InnDe”), developed a technology for the management of live chess tournaments. In April 2005, the respondent, Mr. Daniel F. O’Connor, acted for Ms. Malobabic and InnDe as their lawyer. He was mandated to find equity investments and to constitute a new commercial venture, MonRoi Inc. (“MonRoi”). Allegedly, Mr. O’Connor was also a shareholder of MonRoi: in May 2005, he agreed to substantially reduce his legal fees in exchange for 1% of MonRoi’s shares. On December 18, 2006, Mr. O’Connor, together with three corporate plaintiffs, filed in Superior Court a motion in oppression remedy against MonRoi, InnDe, as well as Ms. Malobabic, claiming they were oppressed by InnDe and MonRoi through Ms. Malobabic who refused to issue their shares. Ms. Malobabic, InnDe and MonRoi responded with a $10M cross‑application in damages, and by the filing of a separate action in which Ms. Malobabic personally claimed damages of some $8M. Over the course of the 12‑year‑long legal proceedings, the corporate plaintiffs eventually settled out of court. The 38‑day trial started in January 2018 before the Superior Court. Mr. O’Connor’s motion in oppression remedy was granted in part and the defence and cross‑application were dismissed with costs. The Court of Appeal granted Mr. O’Connor’s motion to dismiss the appeal filed by Ms. Malobabic, InnDe and MonRoi, and dismissed the appeal with costs since it had no reasonable chance of success.