APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38609

Karen Mawhinney v. Royal Trust Corporation of Canada (previously David Scobie, Thomas Walter and Brian Dau), John Anderson, Sandra Anderson and Susan Anderson (Alta.)

Wills and estates — Wills — Interpretation

Ms. Mawhinney was a beneficiary of the estate of the deceased, Mr. Anderson, who died on September 3, 2015. In his four prior wills, Mr. Anderson's three adult children and Ms. Mawhinney were equal residuary beneficiaries of his estate. This scheme of distribution was altered by a codicil and will executed by Mr. Anderson in August, 2015. The will provided Ms. Mawhinney with other bequests, but the residue of the estate was to be distributed only among the three children. The will also contained a "no contest" clause which stated if any beneficiary challenged the validity of the will or commenced litigation in connection with the will, that beneficiary would forfeit any gifts under the will. The forfeited gifts would then fall into the residue of the estate for distribution. The no contest clause provided for two exceptions. A beneficiary could seek the assistance of the court in the administration of the estate or could seek to "enforce or obtain any rights or benefits" conferred by the law of Alberta without triggering the no contest clause. The personal representatives of the estate obtained a grant of probate in common form of the August will. Ms. Mawhinney contended that there were suspicious circumstances surrounding the preparation and execution of the codicil and August will. She sought the advice and direction of the court to determine whether an application by her under Surrogate Rule 75(1)(a) to obtain formal proof of the will would fall within one of the exceptions to the no contest clause. The motion judge determined that the applicant could require the proof in formal form without triggering the no‑contest clause. That decision was overturned on appeal.

38580

Brian Suen v. Envirocon Environmental Services, ULC, and British Columbia Human Rights Tribunal (B.C.)

Human rights — Discrimination in employment — Discrimination based on family status

Mr. Suen started working in the Burnaby office of Envirocon Environmental Services, ULC, as a project manager in 2012. The position required some travel to project sites. In 2015, his wife gave birth to their first child. In January 2016, the manager of a project in Manitoba resigned unexpectedly, and the Director of Projects assigned Mr. Suen to manage that project for eight to ten weeks. Envirocon would not pay for him to return home until the end of the assignment. After discussion by email, Mr. Suen informed the Director of Projects that he would not be accepting the assignment out of consideration to his wife and child. He was given an opportunity to reconsider, and was warned that he would be dismissed if he did not accept the assignment, but, when he did not change his mind, he was informed that his employment had been terminated, effective immediately.

Mr. Suen filed a complaint under the Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(1), alleging that Envirocon had discriminated against him in relation to employment. Envirocon made a preliminary application to dismiss the complaint. The British Columbia Human Rights Tribunal held that Mr. Suen might be able to establish direct discrimination based on the termination of his employment due to his having become a parent, or indirect or adverse effect discrimination based on a change in a term or condition of his employment that resulted in a serious interference with a substantial parental or other family duty of obligation. Envirocon accepted that there would be a hearing of the direct discrimination complaint, but requested judicial review, seeking to limit the hearing to the existence of that complaint. The chambers judge dismissed the petition, finding that the decision not to dismiss the complaint was discretionary and entitled to deference. The Court of Appeal allowed a further appeal and set aside the Tribunal's decision, holding, based on Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, that the facts alleged could not establish that the change in the term or condition of employment had resulted in a serious interference with a substantial parental or other family duty or obligation.

38611

Fawzi Bidawi v. Her Majesty the Queen (Ont.)

Criminal law — Limitation of actions — Procedure

Mr. Bidawi was tried in summary conviction proceedings. He was charged in Count 2 that he did store a firearm, a shotgun, in a careless manner however in issue was an allegation that he carelessly transported the shotgun in his vehicle. He was charged in Count 3 that he did store ammunition in a careless manner contrary however in issue was careless storage of a firearm. He was tried in summary conviction proceedings. Summary conviction offences attract a 6‑month limitation period. After closing its case, Crown counsel applied to re-open the case to amend the Information. The trial judge permitted Crown counsel to amend the Information to change "store" to "transport" in count 2 and "ammunition" to "firearm" in count 3. Mr. Bidawi was convicted for careless transportation of a firearm contrary to s. 86(2) of the Criminal Code based on breach of s. 10(2)(b) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98‑209. He was convicted for carelessly storing a firearm contrary to s. 86(2) of the Criminal Code based on breach of s. 5(1) of the Regulations. A summary conviction appeal was allowed and acquittals entered on the basis that the amendments instituted new proceedings outside the limitation period applicable to summary conviction offences and the evidence did not support convictions on the original charges. The Court of Appeal allowed an appeal and reinstated the convictions.

38557

Van Raay Paskal Farms Ltd., John Schooten and Sons Custom Feedyard Ltd., Grandview Cattle Feeders Ltd., G. Thompson Livestock Co. Inc., 6a Cattle Company Ltd., Adrian Dewilde, K. Wever & Sons Farms, Monarch Feeders Ltd. and 589494 Alberta Ltd. v. County of Lethbridge (Alta.)

Legislation — Interpretation — Taxation legislation

The applicants are owners of cattle feedlots and farm land located in the County of Lethbridge in Alberta. The County of Lethbridge is a rural municipality and its local economy relies predominately on agriculture. The County passed a Business Tax Bylaw that applied to businesses including feedlots and other confined feeding operations in the County. The applicants sought a declarations under the Municipal Government Act, R.S.A. 2000, c. M‑26 that the bylaw was invalid and ultra vires the County. The applicants' motion was dismissed and the subsequent appeal was also dismissed.

38341

Whirlpool Canada LP and Whirlpool Corporation v. Sylvain Gaudette (Que.)

Civil procedure — Class action — Exception to dismiss — Res judicata

In 2016, the respondent Mr. Sylvain Gaudette filed an application to authorize a class action against the applicants, Whirlpool Canada LP and Whirlpool Corporation alleging flaws in the design of front‑loaded Whirlpool Washing Machines, which cause the accumulation of mold leading to mildew odours. The applicants filed an exception to dismiss the application on the ground of res judicata because an identical application to authorize a class action had been previously filed in 2009 by Mr. Sylvain Lambert and definitely adjudicated in 2015 when the Supreme Court of Canada denied leave to appeal. In that prior case, Mr. Lambert's authorization was dismissed because it failed to meet all of the conditions established in the Code of civil procedure. The personal claim of Mr. Lambert was prescribed under the Civil Code of Quebec, which made him an inadequate representative for the proposed group. In this present case, the applicants also filed an application to declare the application to authorize a class action of Mr. Gaudette abusive because it engages unnecessary judicial resources. The exception to dismiss on ground of res judicata and the application to declare an application to authorize a class action abusive were both dismissed by the Superior Court. The Court of Appeal dismissed the appeal.

38529

Arati Rani Das, Rehana Khatun, Mohamed Alauddin and Kashem Ali v. George Weston Limited, Loblaw Companies Limited, Loblaws Inc., Joe Fresh Apparel Canada Inc., Bureau Veritas - Registre International de Classification de Navires et D'aéronefs SA, Bureau Veritas Consumer Products Services, Inc. and Bureau Veritas Consumer Products Services (BD) Ltd. (Ont.)

Torts — Negligence — Conflict of laws

On April 24, 2013, the Rana Plaza building in Savar, Bangladesh collapsed due to significant structural flaws, killing and injuring thousands of factory workers making garments for international export including Joe Fresh Apparel Canada Inc., a brand owned and controlled by Loblaws Companies Limited.

The applicants, who are comprised of injured workers or family members of the injured and deceased workers, commenced a class action in Ontario against the respondents, George Weston Ltd., Loblaw Companies Ltd., Loblaws Inc., and Joe Fresh Apparel Canada Inc. (collectively Loblaws) and the respondent Bureau Veritas, a company Loblaws had contracted to conduct a limited audit of the premises where the garments were manufactured. The applicants sought to hold the two companies responsible for the damages suffered by everyone who was killed or injured in the collapse by applying the class actions law of Ontario.

After the applicants moved for certification, Loblaws and Bureau Veritas brought motions under Rule 21of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action on the basis that it is plain and obvious that it cannot succeed.

The motion judge dismissed the action concluding that the substantive law of Bangladesh applied to the class members' claims, the claims were statute‑barred under Bangladesh's Limitation Act, 1908 (save for the claims of class members born on or after April 22, 1996) and it was plain and obvious that the claims could not succeed. Since there were no legally viable claims, he refused to certify the class action and granted the respondents' motions to dismiss the action.

The Court of Appeal agreed with the motion judge's conclusions on the merits of the case and dismissed the appeal but reduced the cost award.