Victor Cantore v. Nemaska Lithium Inc. (Formerly Nemaska Lithium Inc., Nemaska Lithium Whabouchi Mine Inc., Nemaska Lithium Shawinigan Transformation Inc., Nemaska Lithium P1p Inc. and Nemaska Lithium Innovation Inc.), et al.
Bankruptcy and insolvency — Procedure
H.E., in her quality as liquidator of the succession of F.K. v. André Gabbay et associés inc.
Bankruptcy and insolvency — Civil procedure
Martin Cousineau c. Gino Villeneuve, en sa qualité de syndic de l'Ordre des audioprothésistes du Québec, et al.
Charter of Rights — Freedom of expression
Her Majesty the Queen v. Peter Ernest Edward Beckett(B.C.)
The respondent was convicted by a jury of first‑degree murder in the death of his wife. The couple had been on a camping trip when his wife fell off a boat and drowned. The respondent was the only other person on the boat, and he provided a detailed witness statement to police. The Crown’s case was entirely circumstantial, and the issue at trial was whether the drowning was accidental, or whether it was the result of an unlawful act by the respondent. The trial judge instructed the jury that if they found the respondent’s statement to police to be false, it was open to them to find that it had been fabricated with the intention of avoiding suspicion. On appeal, the respondent argued that the jury should not have been instructed on fabrication. He also alleged that the trial judge had erroneously admitted evidence, and that Crown counsel had relied on unproven facts and gave evidence in his closing submissions to the jury. The Court of Appeal allowed the respondent’s conviction appeal. It held that the trial judge should not have instructed the jury on fabrication, and that the trial judge erred in admitting unreliable and speculative evidence. The Court of Appeal also found that Crown counsel’s closing submissions were improper. However, it did not find the jury’s verdict to be unreasonable, and ordered a new trial.
Her Majesty the Queen v. Pierre-Luc Bérubé-Gagnon(Que.)
Criminal law — Sentencing — Considerations.
The respondent, Mr. Bérubé‑Gagnon, was charged with aggravated assault. He was 18 years and 2 months old at the time of the incident. Following his trial, he was convicted of the offence. Taking note of the fact that, according to Quebec court decisions, the sentencing range for this type of offence varies from six months to six years, the trial judge imposed a sentence of 15 months’ imprisonment followed by three years of probation.
The Quebec Court of Appeal allowed Mr. Bérubé‑Gagnon’s appeal in part, reversed the sentence imposed, and sentenced him instead to 90 days of imprisonment to be served intermittently followed by two years of probation. To justify its intervention, the Court of Appeal referred to the accused’s youth and the fact that he had no prior criminal record, that he was well on the road to rehabilitation and that the presentence report was favourable. It found that the trial judge had imposed a “demonstrably unfit” sentence and that his analysis had been incomplete and inadequate on several points relating to the sentencing criteria, including the principles of individualization, parity and restraint. The sentence was not proportionate to the gravity of the crime or to the degree of responsibility.
Victor Cantore v. Nemaska Lithium Inc. (Formerly Nemaska Lithium Inc., Nemaska Lithium Whabouchi Mine Inc., Nemaska Lithium Shawinigan Transformation Inc., Nemaska Lithium P1p Inc. and Nemaska Lithium Innovation Inc.), PricewaterhouseCoopers Inc., Investissement Québec, Pallinghurst Group, OMF Fund II (K) Ltd., OMF Fund II (N) LTD., FMC Lithium USA Corp., Brian Shenker(Que.)
Bankruptcy and insolvency — Procedure
Proceedings were commenced under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36, in respect of companies involved in a mining project in Quebec. This led to an uncontested sale or investment solicitation process and an offer subject to a condition that a reverse vesting order be issued. Under the reverse vesting order, the offering companies acquire the shares of the insolvent companies, they assume secured debt, but claims of creditors and unwanted assets are transferred to a new non‑operating company before closing. The insolvent companies applied to the Superior Court of Quebec for an order approving the transaction and issuing the required reverse vesting order. Mr. Cantore, a shareholder and a creditor of royalties objected to the transaction and the reverse vesting order. The Superior Court of Quebec granted leave to enter into the transaction and issued the reverse vesting order. The Court of Appeal dismissed an application for leave to appeal.
H.E., in her quality as liquidator of the succession of F.K. v. André Gabbay et associés inc.(Que.)
The applicant has been declared a quarrelsome litigant in the Superior Court. She has been involved in protracted litigation with respect to the administration of her mother’s estate. In 2008, the applicant filed an action against Groupe Boudreau Richard Inc., and Mr. Boudreau personally, alleging poor administration of her mother’s affairs and estate. However, the applicant failed to inscribe the case for proof and hearing within the prescribed time, which resulted in her action being discontinued. Meanwhile, Mr. Boudreau filed for bankruptcy in 2017. In 2019, the applicant opposed Mr. Boudreau’s discharge from bankruptcy. The Bankruptcy Registrar dismissed the applicant’s objection on the ground that she is not a creditor for the bankruptcy and, as a result, cannot oppose his discharge from bankruptcy. The applicant failed to appeal from this decision within the prescribed delay. The Chief Justice of the Superior Court refused to allow the applicant to file a motion for an extension of time given that the appeal of the Registrar’s decision had no reasonable chance of success. The Court of Appeal dismissed the applicant’s application for leave to appeal, holding that since she had failed to establish a provable claim in bankruptcy against the bankrupt, the appeal was unlikely to succeed.
Brian Shenker v. Nemaska Lithium Inc., Nemaska Lithium Whabouchi Mine Inc., Nemaska Lithium Shawinigan Transformation Inc., Nemaska Lithium P1P Inc., Nemaska Lithium Innovation Inc., PricewaterhouseCoopers Inc., Investissement Québec, Pallinghurst Group, OMF Fund II (K) Ltd., OMF Fund II(N) Ltd., FMC Lithium USA Corp., Victor Cantore(Que.)
Proceedings were commenced under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36, in respect of companies involved in a mining project in Quebec. An uncontested sale or investment solicitation process led to an offer subject to a reverse vesting order being issued. Under the reverse vesting order, the offering companies acquire the shares of the insolvent entities, they assume secured debt, but claims of creditors and unwanted assets are transferred to a new non‑operating company before closing. The reverse vesting order includes a qualified release in favour of the directors and officers of the insolvent companies. The insolvent companies applied to the Superior Court of Quebec for an order approving the transaction and issuing the reverse vesting order. The Superior Court of Quebec granted leave to enter into the transaction and issued the reverse vesting order. The Court of Appeal dismissed an application for leave to appeal.
Hoëgh Autoliners AS, Hoëgh Autoliners, Inc. v. Darren Ewert(B.C.)
Mr. Ewert launched a class action alleging that Hoëgh Autoliners AS and Hoëgh Autoliners, Inc (collectively, “Hoëgh”) had participated in a global price‑fixing conspiracy for roll‑on/roll‑off marine shipping services that transported new foreign vehicles to British Columbia. Hoëgh are foreign defendants in an action in British Columbia. Hoëgh were allegedly parties to and acted in furtherance of a global price‑fixing conspiracy that had harmed purchasers of new imported vehicles in British Columbia. Neither Hoëgh Autoliners AS nor Hoëgh Autoliners, Inc. had provided the price‑fixed services to the British Columbia market, but it was alleged that they had conspired to lessen competition and inflate prices, resulting in higher prices for vehicle purchasers in British Columbia.
The chambers judge held the undisputed aspects of the pleadings established a real and substantial connection between British Columbia and the facts on which the proceedings are based. He dismissed the application. The Court of Appeal dismissed Hoëgh’s appeal.
984274 Alberta Inc. v. Her Majesty the Queen(F.C.)
The applicant, 984274 Alberta Inc., was incorporated under the laws of Alberta in 2002, as a wholly owned subsidiary of Henro Holdings Corporation (“Henro”). On April 24, 2002, Henro transferred 84 acres of land to the applicant on a tax‑free rollover basis. Later that day, the applicant sold the land to an arm’s length party. For that taxation year, the applicant reported the taxable capital gain resulting from the sale transaction and paid the tax owing of $1,809,598. The applicant was assessed as reported. In 2009 however, following an audit of Henro, the Canada Revenue Agency (“CRA”) issued a reassessment, determining that the tax neutral rollover of land to the applicant was ineffective and that the sale transaction should be taxed in the hands of Henro. As a result of Henro’s reassessment, the CRA also issued the applicant a nil assessment in 2010 and refunded to the applicant the taxes it paid in 2003 together with refund interest on that amount. In 2012, the CRA confirmed Henro’s reassessments and assessments and Henro appealed that ruling to the TCC. In 2014 CRA and Henro settled the matter by way of an agreement that was co-signed by the applicant, although it was not party to the appeal. The settlement agreement stipulated that that taxes were payable by the applicant as originally reported and assessed in 2003. The CRA issued a reassessment in 2015, requiring the applicant to repay the refund of taxes it received in 2010, refund interest paid by the Minister, plus arrears interest. The applicant appealed. The Tax Court of Canada allowed the applicant’s appeal. The Federal Court of Appeal overturned that decision. The Minister was entitled to recover all payments made to the applicant in 2010, including arrears interest.
Martin Cousineau v. Gino Villeneuve, in his capacity as Syndic of the Ordre des audioprothésistes du Québec, Attorney General of Quebec(Que.)
Charter of Rights — Freedom of expression
The applicant, Mr. Cousineau, is a hearing aid acoustician. He is also the publisher of a magazine that contains general information about hearing health. Certain issues of the magazine that were distributed in 2012 included articles promoting brands or models of hearing aids offered by five different manufacturers, which had to pay $25,000 each to publish articles in the magazine. The Syndic of the Ordre des audioprothésistes du Québec (“Order”) filed a complaint against Mr. Cousineau, accusing him of breaches of s. 5.08 of the Code of ethics of hearing-aid acousticians, which concerns ethical obligations of members in relation to advertising. The Order’s disciplinary council found Mr. Cousineau guilty as charged and dismissed a motion in which he argued that s. 5.08 was unconstitutional and of no force or effect. The Professions Tribunal dismissed Mr. Cousineau’s appeal with respect both to his guilt and to his constitutional argument. The Superior Court dismissed his application for judicial review. The Court of Appeal dismissed an application for leave to appeal and a motion for correction.
Lone Oak Properties Ltd. v. Clayton Baillie, Wilma Baillie(Ont.)
Property — Real property — Covenants
The applicant is a developer of a small subdivision. The respondents purchased a vacant lot from the applicant which was subject to a time-limited restrictive covenant limiting the size of ancillary buildings to 48 by 24 feet. The respondent, Clayton Baillie, wanted to build a shed and he knew that he required the approval of the applicant to do so. He hired a builder and the shed measuring 60 by 30 feet was constructed in 2017. It is the position of the applicant that the shed was built without the requisite approval. It is the position of the respondents that they had obtained the approval necessary for their construction of the shed. The application judge found the restrictive covenant to be unenforceable, and dismissed the applicant’s application. The Court of Appeal dismissed the appeal, and varied the costs award.
Nabil Edward Fanous v. Steven Lapointe(Que.)
On October 11 and 19 and November 9, 2013, the applicant physician, Nabil Edward Fanous, advertised a new facelift technique called Optimum Mobility in the La Presse newspaper. The advertisement was also posted on his website. In August 2014, the respondent, the assistant syndic of the Collège des médecins, filed a complaint against Mr. Fanous under the Code of ethics of physicians, CQLR, c. M‑9, r. 17, on the ground that the advertising was false, misleading, inaccurate, incomplete and/or liable to mislead. The disciplinary council of the Collège des médecins acquitted Mr. Fanous of all seven charges in the complaint in July 2016. The syndic appealed the disciplinary council’s decision to the Professions Tribunal, which allowed the appeal in part in July 2019. Mr. Fanous was convicted of five of the seven charges, namely the ones relating to the use of a reversed photograph, failure to disclosure the other surgeries undergone by the patient who appeared in the photograph, the fact that the time between the facelift and the taking of the photograph was too short, the fact that the advertising indicated that a future patient would look 10 to 13 years younger, which amounted to a promise of a result, and the use of photographs from before and after surgery that were not comparable. The Professions Tribunal reproached the disciplinary council mainly for using a criterion of scientific accuracy rather than assessing the advertising using an overall approach combined with the test of the general impression given to a member of the public who was a layperson. Mr. Fanous applied to the Superior Court for judicial review of that decision. The Superior Court dismissed the application, and the Court of Appeal dismissed the motion for leave to appeal.
Yowan Guillemette-Lamontagne v. Her Majesty the Queen(Que.)
In July 2017, the accused was stopped by a police officer after a high‑speed chase. He was arrested for dangerous driving and flight. At trial, the Crown questioned the police officer about the accused’s reaction following the arrest. The trial judge immediately interceded to rectify the Crown’s comments and instruct the jury on the concept of the right to silence. The trial judge later interceded again by giving corrective instructions after the Crown made erroneous comments about its burden of proof. In December 2018, the accused was convicted by the jury on charges of dangerous driving (s. 249(1)(a) and (2)(a) Cr. C.) and failing to stop his vehicle while being pursued by a peace officer (s. 249.1(1) and (2)(a) Cr. C.). The trial judge imposed a three‑month conditional sentence, made a two‑year probation order, and prohibited the accused from driving and confiscated his driver’s licence for one year. In October 2020, the Quebec Court of Appeal unanimously dismissed the accused’s appeal. It found that the trial judge’s corrective instructions had served to ensure the fairness of the trial as regards both the accused’s right to silence and the Crown’s burden of proof. The Court of Appeal also held that the jury’s verdict was consistent with judicial fact‑finding requirements.
Deng Garang v. Her Majesty the Queen(Alta.)
The applicant was charged with 18 offences arising out of a home invasion related to the enforcement of a drug debt. The matter was repeatedly set down for trial and adjourned numerous times as the applicant retained and discharged different counsel. After he discharged his last lawyer in the middle of his trial, the trial judge refused the applicant’s request for another adjournment. The applicant then pleaded guilty, with the Crown’s consent, to possession of cocaine for the purpose of trafficking and possession of a firearm. He was sentenced to a term of imprisonment. The applicant filed an appeal from his convictions, alleging that he was pressured into entering the guilty pleas and that his Charter rights had been breached. The Court of Appeal dismissed his appeal.
Bernard Tremblay v. Attorney General of Quebec(Que.)
The applicant, an engineer by training, worked on a freelance basis for Macogep inc., a company that managed construction projects. Macogep was retained by the Ministère des Transports du Québec (“MTQ”) to provide staff for the Dorval interchange project, and in July 2012, the applicant was hired as project and contract manager. Dissatisfied with the applicant’s performance, the MTQ asked Macogep to replace him. The applicant was removed from the project, and Macogep told him that it had no other work to offer him. In February 2013, the applicant entered into an agreement to provide project management consulting services with Groupe Axor inc., the manager of the McGill University Health Centre construction project under a public‑private partnership with the Ministère de la Santé et des Services sociaux (“MSSS”). In May 2013, Axor resiliated the applicant’s contract for services because it was not satisfied. The applicant instituted legal proceedings in which he took issue with the resiliation by the MTQ and the MSSS of his contracts for the two projects. The Superior Court dismissed the applicant’s monetary claims, finding that there was no evidence of any fault committed against him in the course of those two projects. On June 7, 2019, the Quebec Court of Appeal granted the Attorney General of Quebec’s motion to dismiss and dismissed the applicant’s notice of appeal on the ground that most of the conclusions sought in the notice were declaratory and went well beyond the disposition of the judgment being appealed, such that his appeal had no reasonable chance of success. On September 30, 2019, the Court of Appeal dismissed the applicant’s motion for revocation of judgment, noting that he was arguing the merits of his case again without raising any ground of revocation. On February 3, 2020, the Court of Appeal granted the Attorney General of Quebec’s motion to dismiss and dismissed the applicant’s amended notice of appeal. On October 26, 2020, the Court of Appeal dismissed the applicant’s motion for revocation of judgment, finding that it did not raise any ground of revocation that could fit within the causes set out in art. 345 of the Code of Civil Procedure, CQLR, c. C‑25.01.
Bernard Tremblay v. Ordre des ingénieurs du Québec(Que.)
The applicant, Bernard Tremblay, was convicted by the Court of Québec of four charges laid by the respondent, the Ordre des ingénieurs du Québec, under the Professional Code, CQLR, c. C‑26, and the Engineers Act, CQLR, c. I‑9, for unlawful practice of the profession of engineer. Mr. Tremblay had used the abbreviation “Ing.” (meaning engineer) in emails and in the resume he sent to potential employers, even though he was no longer a member of the Ordre des ingénieurs du Québec. Mr. Tremblay appealed that decision to the Superior Court, which dismissed the appeal. The Court of Appeal dismissed the motion for leave to appeal. It also dismissed the motion for revocation of the judgment it had rendered on the motion for leave to appeal.