APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
SCC No. Case Name Province of Origin Keywords 37498 Vancouver Career College (Burnaby) Inc., dba Vancouver Career College, also dba CDI College, also dba Vancouver College of Art and Design also dba Eminata Group v. Vancouver Community College BC Intellectual property – Trademarks – Confusion 37635 Raynald Grenier c. Sa Majesté la Reine Federal Court Taxation – Income tax – Assessment – Appeals 37630 Carl Samson c. Banque Canadienne Impériale de Commerce QC Judgments and orders – Execution – Opposition to seizure in execution 37693 Fang Hu v. Alberta Law Enforcement Review Board et al. AB Police – Complaints of service 37799 Brandon William Lane v. Attorney General of Canada (On Behalf of the United States of America) ON Charter of Rights and Freedoms – Criminal law – Extradition 37646 Derrick Miles Henderson v. Ernest Elder, Coach of the Maynerds Electric 13A Wheat Kings MB Torts – Negligence – Duty of care 37691 Ville de Québec c. Association des pompiers professionnels de Québec Inc. QC Labour relations – Grievances – Defamation 37713 Mario Godbout c. Sa Majesté la Reine QC Charter of Rights and Freedoms – Criminal law – Procedure 37749 Ramzi Daniel c. Ville de Mont-Saint-Hilaire et autres QC Civil procedure – Time 37682 St. Clair Pennyfeather v. Timminco Limited et al. ON Securities – Class actions – Limitation of actions 37564 Krishnan Suthanthiran et al. v. Attorney General of Canada on behalf of the Kingdom of Belgium ON Private international law – Mutual legal assistance – Criminal law 37633 Jacques Caya c. Autorité des marchés financiers QC Criminal law – Provincial offences – Courts 37743 George Giannaris v. City of Toronto (Revenue Services) ON Civil procedure – Motion to set aside or vary order 37710 Paul Ritchie v. Attorney General of Canada Federal Court Human rights – Discriminatory practices – Harassment 37654 Joan Abernethy v. Her Majesty the Queen in Right of Ontario as Represented by Crown Attorneys (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O’Neill, Kathryn (Kathy) Rippey and Gerry McNeilly et al. ON Charter of Rights – Crown law – Crown liability
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Vancouver Career College (Burnaby) Inc., dba Vancouver Career College, also dba CDI College, also dba Vancouver College of Art and Design also dba Eminata Group v. Vancouver Community College (B.C.)
Intellectual property – Trademarks – Confusion
The respondent, Vancouver Community College is a public post-secondary education institution designated as a college under the College and Institute Act, R.S.B.C. 1996, c. 52. It has operated under that name since 1974 and has two campuses in the Vancouver area. In January, 1999, it caused the Registrar of Trade-marks to publish notice of “VCC” as an official mark; and “Vancouver Community College” as an official mark in October, 2005 under the Trade-marks Act, R.S.C. 1985, c. T-13. The applicant, Vancouver Career College (Burnaby) Inc. is a private college. It is regulated under the Private Training Act, S.B.C. 2015, c. 5. Both entities share the same initials, “VCC”. Vancouver Community College brought a passing off action against Vancouver Career College with respect to the use of the initials “VCC” and for breach of its official marks. Vancouver Community College alleged that Vancouver Career College, principally through keyword advertising, misrepresented its educational services as those of the respondent. Vancouver Community College also alleged the applicant improperly use the initials “VCC” both internally and externally to the world at large. It further alleged the respondent adopted the domain name “VCCollege.ca” thereby creating public confusion. The Supreme Court of British Columbia dismissed the passing off action. The Court of Appeal allowed the appeal and remitted the issue of quantum of damages to the trial court.
Raynald Grenier v. Her Majesty the Queen (F.C.)
Taxation – Income tax – Assessment – Appeals
The applicant Raynald Grenier granted Énergie Éolienne Des Moulins S.E.C. a right to access and use his land to install wind turbines. Under the contract, one of the amounts received by Mr. Grenier was [translation] “compensation based on the volume of merchantable timber”. The Minister of National Revenue issued assessments against Mr. Grenier for the 2012 and 2013 taxation years stating that he had failed to report certain amounts as farm income and pension income. The Minister also imposed penalties under the Income Tax Act. Mr. Grenier challenged the assessments and penalties, alleging that the amounts received were instead compensation for personal damage and thus not taxable. He therefore argued that a penalty should not have been imposed. He also alleged that the Canada Revenue Agency had been negligent with respect to the issuance of two tax slips for his pension income by not verifying the information on the slips or checking whether they were duplicates; there was therefore a risk of double taxation.
The Tax Court of Canada dismissed an appeal by Mr. Grenier and confirmed the assessments and the penalties imposed. Tardif J. found, inter alia, that the documentary evidence in support of the assessments and penalties was not ambiguous and that the failure to report certain amounts had not been a mistake but rather a wilful and deliberate decision.
The Federal Court of Appeal affirmed Tardif J.’s decision on the assessments and the penalties imposed. It allowed Mr. Grenier’s appeal in part to give effect to a concession by the Agency; it reduced Mr. Grenier’s income and adjusted the penalties accordingly. Aside from those reductions, the Court of Appeal was of the view that Tardif J. had not erred in endorsing the Minister’s position on the correctness of the assessments. Finally, the Court of Appeal affirmed that no double taxation had resulted from the issuance of two slips.
The Federal Court of Appeal later dismissed a motion filed by Mr. Grenier asking it to reconsider and set aside its first decision, since it was of the view that Mr. Grenier was merely repeating the same arguments he had already made before the same judges and before the trial judge. The Court of Appeal stated that a motion to reconsider may not be used to appeal a judgment or to relitigate an issue that has already been decided.
Carl Samson v. Canadian Imperial Bank of Commerce (Que.)
Judgments and orders – Execution – Opposition to seizure in execution
The applicant Carl Samson was a shareholder and director of Sky High Vikings Productions Inc. (Sky High Vikings), which was incorporated in the fall of 2002 for the sole purpose of producing a film entitled “Vikings: Journey to New Worlds”. In connection with that project, the respondent Canadian Imperial Bank of Commerce (CIBC) made two loans to Sky High Vikings in the form of lines of credit totalling just over $5,000,000. One of the loans was secured by the film’s American distributor, and there was also an insurance policy with Export Development Canada (EDC) securing 90% of the payments owed by the distributor to the CIBC. Finally, Sky High Vikings granted a general movable hypothec covering, inter alia, the universality of its movable property in favour of the CIBC for the entire debt.
As a result of an action brought by the American distributor against Mr. Samson, Sky High Vikings and others in 2005 in an American court, Mr. Samson and Sky High Vikings were ordered in 2007 to pay the CIBC nearly $4 million in compensatory damages and legal and other fees. In 2007, the CIBC instituted an action against EDC, which alleged the nullity of the insurance policy, in order to recover the amounts lent to Sky High Vikings in light of the refusal of the American distributor to pay. That action was settled through a transaction in April 2009 in which the CIBC discharged EDC. In 2013, the Superior Court recognized the American judgment and declared it executory against Mr. Samson. After exhausting his recourses against the Superior Court’s decision homologating the American judgment, Mr. Samson went back to the Superior Court with a motion to oppose the CIBC’s seizure of movable property in execution. The Quebec Superior Court dismissed the motion and the Court of Appeal dismissed the appeal
Fang Hu v. Alberta Law Enforcement Review Board, Chief of the Edmonton Police Service, Cst. J. Wedman and Cst. J. Holben (Alta.)
Police – Complaints of service
In 2012, the Applicant filed a complaint to the Edmonton Police Service against the father of two daughters to whom the Applicant had been making unwanted advances. The Chief of Police dismissed the complaint on the basis that that there was no reasonable likelihood of conviction against the Respondents for any misconduct at a disciplinary hearing. The Applicant appealed this decision before the Alberta Law Enforcement Review Board, which rejected the appeal. The Court of Appeal dismissed the application for permission to appeal.
Brandon William Lane v. Attorney General of Canada (On Behalf of the United States of America) (Ont.)
Charter of Rights and Freedoms – Criminal law – Extradition
Various child pornography charges were laid against Brandon Lane in the United States and Canada. The Canadian charges were ultimately stayed. While on bail in Ontario pending the hearing for his committal for extradition, Mr. Lane was charged with breach of recognizance and a number of additional criminal offences related to the possession and making of child pornography under the Criminal Code. He pleaded guilty to those offences. At his sentencing hearing, Mr. Lane brought an application for the court to consider evidence that he not only possessed and made child pornography, but also that he distributed it, even though a distribution charge was not before the court. Over the objection of the Crown and the American authorities, the sentencing judge granted the application and took the distribution into account as an aggravating factor in imposing a sentence of 9.5 years’ imprisonment. Mr. Lane subsequently consented to his committal for surrender for extradition. He then submitted to the Minister of Justice that his surrender should be refused because the facts of his distribution of child pornography were taken into account in his Canadian sentence. He argued that extradition to face similar charges in the United States would expose him to double jeopardy, contrary to the Treaty on Extradition between Canada and the United States. He also argued that his surrender would violate s. 7 of the Charter, primarily on the basis that the severity of the potential sentence he would be subject to in the United States would shock the Canadian conscience and unjustifiably infringe his right to remain in Canada under s. 6(1).
The Minister issued an order for Mr. Lane’s surrender to the United States. The Ontario Court of Appeal dismissed Mr. Lane’s application for judicial review, finding the Minister’s surrender decision was reasonable.
Derrick Miles Henderson v. Ernest Elder, Coach of the Maynerds Electric 13A Wheat Kings (Man.)
Torts – Negligence – Duty of care
Mr. Henderson is a hockey referee who suffered a serious injury following physical contact with an unidentified 13-year old player coached by the respondent, Mr. Elder, on the ice during a game. The player in question was coming off the bench in the course of changing lines “on the fly”, as the game was ongoing. Following physical contact with the player, Mr. Henderson fell and sustained severe and permanent injuries to his neck and spinal cord. Mr. Henderson brought an action in negligence against various persons and entities, including the player’s coach, Mr. Elder.
A Senior Master of the Manitoba Court of Queen’s Bench dismissed the defendants’ motion for summary judgment, which sought dismissal of Mr. Henderson’s claim. A judge of the Court of Queen’s Bench upheld that decision on appeal with respect to the claim against Mr. Elder, but allowed the other defendants’ motions on appeal. As a result, the trial proceeded only as against Mr. Elder. At trial, the Court of Queen’s Bench dismissed Mr. Henderson’s action, finding that he failed to meet the onus to establish liability on the part of the coach, Mr. Elder, in the absence of any evidence of negligence, carelessness or intent to injure. The Manitoba Court of Appeal dismissed Mr. Henderson’s appeal, upholding the trial judge’s decision.
Ville de Québec v. Association des pompiers professionnels de Québec inc. (Que.)
Labour relations – Grievances – Defamation
On March 12, 2009, Richard Côté, the vice‑chair of the executive committee and the person responsible for human resources and labour relations matters at the applicant city of Québec, acquiesced in the defamatory statements made by a journalist against the respondent Association des pompiers professionnels de Québec inc. during a television report broadcast on TVA-Québec. The journalist claimed that the respondent, which at the time was negotiating the renewal of its collective agreement with the applicant, had used a pressure tactic that might affect public safety, namely the referral of emergency calls to fire stations farther away. In response to the interview, the respondent sent Mr. Côté a demand letter on March 16, 2009. The same day, Mr. Côté spoke during a televised municipal council meeting to say that he had not provided information on the issue of referred emergency calls. He also said that he had ordered an internal investigation into the matter and that, if the information was false, he promised to say so publicly. Yet despite the internal investigation reports indicating that the respondent had never used such a pressure tactic and the promise made at the committee meeting to inform the public of this, Mr. Côté and the applicant remained silent. On March 20, 2009, the respondent filed a grievance against the city of Québec seeking damages for defamation. The Superior Court dismissed the motion to institute proceedings for judicial review. The Court of Appeal allowed the appeal in part.
Mario Godbout v. Her Majesty the Queen (Que.)
Charter of Rights and Freedoms – Criminal law – Procedure
The applicant was tried before a jury after being charged with the first degree murder of his spouse, whom he had stabbed four times on the evening of October 20, 2011 following an argument. After the prosecution agreed to reduce the charge, the applicant pleaded guilty to second degree murder, but there was no agreement on the period of parole eligibility. The case had already been closed at that point, but the parties had not begun their closing remarks to the jury selected to hear the trial on the first degree murder charge. In the jury’s absence, the trial judge accepted the applicant’s guilty plea to the lesser included offence of second degree murder. The applicant argued that the judge had acted without jurisdiction ab initio by accepting the plea and convicting him without first discharging the jury; he therefore sought a new trial. The Court of Appeal allowed the appeal for the sole purpose of acquitting the applicant of the charge of first degree murder in light of the conviction for second degree murder.
Ramzi Daniel v. Ville de Mont-Saint-Hilaire, Génivar inc. and Attorney General of Quebec - and - Registrar of the registration division of Rouville (Que.)
Civil procedure – Time – Failure to inscribe for proof and hearing
In 2013, the applicant Ramzi Daniel brought actions against the respondents, the city of Mont‑Saint‑Hilaire, Génivar inc. and the Attorney General of Quebec, to contest the right to expropriate exercised by the municipality against his property. In reply to those actions, the respondents filed motions to dismiss, which the Superior Court dismissed in part on March 5, 2014. The Superior Court’s judgment was appealed by Mr. Daniel on April 4, 2014, and an incidental appeal was filed on April 22, 2014. In parallel with the proceedings instituted in the Court of Appeal, Mr. Daniel obtained an extension of time in the Superior Court for the inscription of the action for proof and hearing, which was pushed back to November 6, 2014. As a result of a serious disagreement with Mr. Daniel in connection with the appeal proceedings, the law firm representing him filed a declaration that it was ceasing to represent him on August 5, 2014 and obtained an order for a special mode of service for that declaration. Following various incidents relating, among other things, to that declaration that the law firm was ceasing to represent him, Mr. Daniel appeared personally in the Court of Appeal on February 6, 2015. In May 2015, a new law firm was given a mandate to represent him in the Superior Court and the Court of Appeal. On March 18, 2016, the Court of Appeal allowed Mr. Daniel’s appeal and dismissed the incidental appeal of the respondent city of Mont-Saint-Hilaire. After his new law firm filed a declaration that it was ceasing to represent him, Mr. Daniel appeared personally again on April 5, 2016, this time in the Superior Court. On May 17, 2016, the city of Mont-Saint-Hilaire filed an inscription for deemed discontinuance. On May 27, 2016, Mr. Daniel, through his new law firm, filed a motion de bene esse to be relieved from his failure to inscribe his action for proof and hearing within the time limit, that is, by November 6, 2014, arguing that it had been impossible for him to act to preserve his rights. That motion was dismissed by the Superior Court, and the appeal from the Superior Court’s decision was dismissed by the Court of Appeal.
St. Clair Pennyfeather v. Timminco Limited, Photon Consulting LLC, Rogol Energy Consulting LLC, Michael Rogol, Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield, Mickey M. Yaksich, John P. Walsh (Ont.)
Securities – Class actions – Limitation of actions
A representative plaintiff sought certification of a class action for misrepresentation in the secondary market under Part XXIII.1 of the Securities Act, R.S.O. 1990, c. S.5 (“OSA”). He alleged that Timminco and various other defendants made public disclosures, which caused an artificial inflation of the Timminco’s share price, but that subsequent disclosures caused its share price to fall. The plaintiff also asserted an intention to seek leave to commence the statutory cause of action, as required by s. 138.8 of the OSA. Three days before the expiry of the three-year statutory limitation period, the plaintiff brought a motion for “conditional leave” and an order suspending the limitation period based on s. 28 of the Class Proceedings Act, 1992, S.O. 1992, c. 6. The decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60,  3 S.C.R. 801, subsequently clarified that s. 28 suspends the operation of the limitation period for a statutory claim for misrepresentation only when leave is granted under s. 138.8 of the OSA, but that courts have inherent jurisdiction to make orders nunc pro tunc when leave is sought within the limitation period.
After the decision in Green, the plaintiff brought a motion for leave to commence the statutory cause of action and to seek nunc pro tunc relief based on Green. The plaintiff’s motion for leave to commence action was dismissed and the Court of Appeal dismissed the appeal.
Krishnan Suthanthiran, Best Theratronics Ltd. and Best Medical Belgium Inc. v. Attorney General of Canada on behalf of the Kingdom of Belgium (Ont.)
Private international law – Mutual legal assistance – Criminal law
Mr. Suthanthiran heads a group of companies which includes Best Theratronics Ltd. and Best Medical Belgium Inc. Belgium sought assistance from Canada under the mutual legal assistance treaty between the two countries. On behalf of Belgium, counsel for the Attorney General of Canada obtained a search warrant unders. 12 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp). The warrant authorized the search of Best’s offices in Canada for records relating to what Belgium regarded as criminal transactions. The premises were searched and records seized. A judge of the Superior Court of Justice made the sending order, but declined to attach any terms or conditions restricting access to the documents to those involved in the criminal prosecution. The Court of Appeal dismissed the appeal.
Jacques Caya v. Autorité des marchés financiers (Que.)
Criminal law – Provincial offences – Courts
On December 20, 2010, the applicant received a statement of offence issued by the respondent containing 123 counts alleging that the applicant had, between 1997 and 2005, aided in unlawful investments, acted unlawfully as a securities dealer and made misrepresentations in contravention of the Securities Act, CQLR c. V‑1.1. On September 22, 2014, the applicant made a motion before Judge Marc Renaud of the Court of Québec for a stay of proceedings for unreasonable delay. Judge Renaud heard the motion on March 23 and 25, 2015, took it under advisement and adjourned the case sine die. On June 4, 2015, Judge Renaud rendered judgment dismissing the applicant’s motion without setting a date to continue the case. On June 17, 2015, Judge Renaud issued a corrected judgment calling the parties to a case management conference scheduled for July 22, 2015. On July 15, 2015, the applicant brought a motion in the Superior Court for a writ of prohibition and stay of proceedings, arguing that Judge Renaud and the Court of Québec had lost jurisdiction. The applicant’s motion was dismissed The Court of Appeal dismissed the appeal.
George Giannaris v. City of Toronto (Revenue Services) (Ont.)
Civil procedure – Motion to set aside or vary order
There is a lengthy history of legal proceedings between George Giannaris and the City of Toronto regarding municipal taxes. In one of those proceedings, Mr. Giannaris sought a declaration in 2013 that he owed no amount for property tax arrears and other various forms of relief regarding a Tax Arrears Certificate registered against his property on November 1, 2012, as well as the City’s efforts to collect those arrears.
On June 11, 2013, the Ontario Superior Court of Justice dismissed the application for a declaration on the basis of issue estoppel. Mr. Giannaris filed a notice of appeal, however, on October 3, 2014, the Registrar of the Ontario Court of Appeal dismissed his appeal for delay. Mr. Giannaris moved to have that order set aside. A single judge of the Ontario Court of Appeal dismissed the motion, finding that Mr. Giannaris continued to provide no acceptable explanation for his delay in perfecting the appeal. She granted the City’s cross-motion for an order prohibiting Mr. Giannaris from bringing further motions without leave of the court, finding the relief sought was amply justified as evidenced by Mr. Giannaris’s numerous attempts to use the courts to delay satisfaction of his debt for outstanding property tax arrears. A panel of the Court of Appeal dismissed Mr. Giannaris’s motion to vary or set aside the order of the single judge of the court.
Paul Ritchie v. Attorney General of Canada (FC)
Human rights – Discriminatory practices – Harassment
The applicant, Mr. Ritchie, served in the Canadian Armed Forces between 2008 and 2012, and alleges he was discriminated against and harassed on several occasions on account of his homosexuality. Mr. Ritchie filed a human rights complaint against the Canadian Forces. The Canadian Human Rights Commission (“CHRC”) dismissed the complaint and declined to refer the matter to the Canadian Human Rights Tribunal, on the basis that further inquiry into the complaint was not warranted. The CHRC had conducted an investigation and had concluded that there were reasonable explanations for the allegedly differential treatment, and that the alleged incidents of discrimination and harassment were “not very serious” and remained isolated events.
The Federal Court dismissed Mr. Ritchie’s application for judicial review of the CHRCH’s dismissal of his complaint, finding that the CHRC investigator’s findings were reasonable and supported by the evidence, and that Mr. Ritchie had failed to show any breach of procedural fairness, or any evidence of unreasonable findings on the part of the investigator or the CHRC. The Federal Court of Appeal dismissed Mr. Ritchie’s appeal from the Federal Court decision.
Joan Abernethy v. Her Majesty the Queen in Right of Ontario as Represented by Crown Attorneys (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O'Neill, Kathryn (Kathy) Rippey and Gerry McNeilly and St. Joseph's Healthcare (Hamilton) Director, East Region Mental Health Services, Judith Santone (Ont.)
Charter of Rights – Crown law – Crown liability
Ms. Abernethy alleged that the Crown defendants (Her Majesty the Queen in Right of Ontario as Represented by Crown Attorneys (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O’Neill, Kathryn (Kathy) Rippey and Gerry McNeilly), among other things, committed misfeasance in public office, conducted themselves in breach of trust, assaulted her, and falsely arrested her. Against Ms. Santone, Ms. Abernethy alleged the tort of breach of privacy. The Crown defendants brought a motion to strike the claims against them, as did Ms. Santone, St. Joseph’s Healthcare (Hamilton) Director, and East Region Mental Health Services.
The motions judge granted summary judgment against Ms. Abernethy, but allowed her permission to amend the statement of claim to pursue the tort of breach of privacy against Ms. Santone, on specified terms. The Court of Appeal dismissed the appeal, allowing the breach of privacy claim to proceed as directed by the motions judge.
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