36055    Marie-Anne Pierre-Louis, et al. v. City of Québec, et al.

Evidence – Burden of proof for establishing racial profiling in civil case

On appeal from the Quebec Court of Appeal. On April 6, 2003, two City of Québec police officers stopped the applicants’ vehicle and searched it.  The applicants, a mother and her two sons, all of whom are black, argued that prohibited racial profiling was the only explanation for that police action.  They filed an ethics complaint, among other things, and the police officers were rebuked by the Comité de déontologie policière for acting for no reason other than the race of the occupants of the vehicle. At the same time, the applicants brought a civil action seeking compensatory and exemplary damages, arguing that they had been victims of racial profiling by the two police officers involved. The Quebec Superior Court dismissed the action for compensatory and exemplary damages and the Court of Appeal dismissed the appeal.

36437   Richard Martin Ashbourne Steele v. Her Majesty the Queen

On appeal from the Court of Appeal for Ontario. The Applicant was convicted of possessing a loaded prohibited firearm which was discovered by a police officer who had intercepted a vehicle in which the Applicant was a passenger along with three other occupants. The police officer intercepted the vehicle for the purpose of checking for proper vehicle documentation and driver sobriety. The Applicant alleges that the search was not authorized by law, that there was insufficient consent for the search, and that the vehicle interception and search were motivated in part by racial bias. As a result, the Applicant sought to have the firearm excluded from evidence. The Ontario Superior Court dismissed the Charter application and entered a conviction. The Court of Appeal dismissed the appeal.

36364    Curtis Bonnell v. Her Majesty the Queen

Criminal Law – Jury charge – Evidence

On appeal from the Court of Appeal of New Brunswick. The applicant, an Aboriginal man, was convicted by a jury of first degree murder. The Crown argued that he killed his victim during a sexual assault and unlawful confinement. The day after his arrest, he led police officers to her burial site. While in custody, he asked to speak with an elder who he believed was a powerful spiritual healer. The police recorded their phone conversation in which the applicant confessed to the elder. The elder was present in subsequent police interviews, conducted a healing ceremony at the victim’s burial site, and urged the applicant to confess to the police. The applicant confessed but testified at trial that the confession was false and he had no memory of the victim’s death due to drug and alcohol consumption. The trial judge admitted two text messages sent by the victim before her death. The applicant was convicted by jury of first degree murder. The Court of Appeal dismissed the appeal.

36369    Daniel J. MacIsaac v. Royal Bank of Canada, et al.

Property – Real property – Land registration

On appeal from the Nova Scotia Court of Appeal. On March 11, 2009 John and Susan Byers, as vendors, entered into an agreement of purchase and sale of their property with Elizabeth and Michael Marmura, as buyers, for the amount of $310,000 with a closing date of June 30, 2009. On December 9, 2008, the Toronto-Dominion Bank (“TD”) had obtained default judgment against Mr. Byers in the amount of $260,152.88 but the judgment was not recorded in the judgment roll until April 9, 2009, after the purchase and sale agreement was executed but prior to the closing date. On March 13, 2009 the Royal Bank of Canada (“RBC”) obtained default judgment against Mr. Byers in the amount of $10,004.74. That judgment was recorded in the judgment roll on May 1, 2009, after the purchase and sale agreement was executed but also prior to the closing date. The applicant, Mr. MacIsaac, is a solicitor who acted for both the Byers and Mamuras on the purchase and sale. On June 30, 2009, the property was conveyed to the Marmuras by warranty deed. Mr. MacIsaac had checked the parcel register for the subject land but not the judgment roll prior to closing. He did not discover either judgment registered against the property. Months later, counsel for TD advised Mr. MacIsaac of the TD judgment and several weeks later RBC did the same. TD and BC applied for an order declaring that the lands were subject to their judgments and that the parcel register be amended to add TD and RBC as judgment interest holders. The Supreme Court of Nova Scotia issued an order that property was subject to judgments registered against the vendors prior to closing and that the parcel register was to be amended to add the two judgments. The Court of Appeal dismissed the appeal.

36310     X v. Autorité des marchés financiers

On appeal from the Quebec Court of Appeal. The applicant X was a lawyer and a member of the legal department of a corporation being investigated by the Autorité des marchés financiers (AMF or respondent). In the course of that investigation, a summons was issued to the applicant X along with a confidentiality order. Invoking professional secrecy, the applicant X went before the Superior Court to have the summons and confidentiality order quashed. The Superior Court dismissed the motion by respondent to dismiss applicant X’s application to annul. The Court of Appeal allowed the appeal.

36334    Dennis McGeady, the Alberta Union of Provincial Employees v. Her Majesty the Queen in Right of Alberta

Administrative law – Boards and tribunals – Jurisdiction

On appeal from the Court of Appeal of Alberta. During the period that he was a member of the Edmonton Police Service the applicant injured his knee and subsequently developed osteoarthritis. After 33 years in the service he resigned his position to accept an offer of employment as an investigator with the Alberta Serious Incident Response Team. Within the ninety-day period immediately prior to the commencement of his new job, the applicant had both his knees injected with Synvisc. Over a year later, and after unsuccessful knee replacement and other surgeries, the applicant applied for long term disability benefits and was told that the Synvisc injections had disqualified him pursuant to s. 6(1) of the Public Service Long Term Disability Continuance Plan Regulation, Ministerial Order 8/1998 (unpublished). That provision states, inter alia, that “[b]enefits will not be paid for any medically documented injury or illness for which an employee received medical services, supplies, or any medication prescribed by a physician during the 90 days immediately preceding the effective date of permanent or temporary employment”. The applicant had not worked at the job for the two consecutive years necessary to be exempt from the provision.

After an unsuccessful appeal to the first appeal level, the applicant appealed to the Long Term Disability Second Level Appeal Board (the “Board”). The Board “decided to make a decision independent of the regulations”. It accepted that had the applicant had adequate exposure to the benefits Plan and regulations, he would not have accepted the position. Taking “a broader view” it disagreed with the denial of benefits, finding that “[t]o do otherwise would result in an unfair and unjust decision and not in keeping with the intent of the LTDI Benefit Plan”.  The respondent successfully applied to the Court of Queen’s Bench of Alberta for an Order quashing the decision and remitting the matter to the Board for a rehearing. The Court held that the Board did not have the authority to grant an equitable remedy which conflicted with the clear wording of the regulation. An appeal to the Alberta Court of Appeal was dismissed.

36389   John Magno v. Her Majesty the Queen

Criminal law – Charge to jury – Evidence

On appeal from the Court of Appeal for Ontario. In December 2001, the hardware store owned by the applicant, Mr. Magno, was looted by seven people (“the co-conspirators”). The same day, two of those seven individuals caused an explosion at the store which destroyed it and which resulted in the death of one of them. At trial, the sole issue was whether Mr. Magno was a participant in the conspiracy to burn down the store. The Crown’s theory was that Mr. Magno hired one of the co-conspirators to orchestrate the arson so as to save him money on demolition costs and provide him with insurance proceeds. In his defence, Mr. Magno argued that all of the evidence implicating him in the arson came from an inherently unreliable co-conspirator who was attempting to shift the blame to him for an arson he organized as a cover-up for looting of the store. At trial, Mr. Magno established collusion among the Crown’s co-conspirator witnesses. As a result, the trial judge gave the jury a Vetrovec warning, instructing them to approach the evidence of the colluding witnesses with caution. The jury found Mr. Magno guilty of manslaughter, conspiracy to commit arson, arson causing bodily harm, and arson for fraudulent purposes. The Court of Appeal dismissed the appeal.

36336   Bell Mobility Inc. v. James Douglas Anderson, et al.

Contracts — Contracts of adhesion — Interpretation

On appeal from the Court of Appeal for the Northwest Territories. In most of the Northwest Territories, the Yukon and Nunavut, there are no 911 services — a call to 911 may be answered by a recorded message. However, all monthly bills from Bell Mobility in the Territories bore a fee of 75 cents for 911 calling. A class action was initiated. The trial judge answered the certified questions as follows:

Issue 1: Do the service agreements between the class members and Bell Mobility expressly require Bell Mobility to provide 911 live operator service to class members? No, but Bell Mobility cannot charge the 911 emergency service fee in the absence of the service.

Issue 2: Do the service agreements of Bell Mobility have an implied term based on custom or usage or as the legal incidents of a particular class or kind of contract, to provide 911 live operator service? No.

Issue 3: Did Bell Mobility provide 911 live operator service to class members: No.

Issue 4: Did Bell Mobility breach the contracts with the class members? Yes.

Issue 5: Has Bell Mobility been unjustly enriched for no juristic reason, or has there been a failure of consideration? Yes.

Issue 6: Is Bell Mobility liable to the class members on the basis of waiver of tort? No.

Issue 7: Was the conduct of the Defendant such that they ought to pay to the class punitive or exemplary damages, and if so, the quantum of such damages? No.

The Court of Appeal dismissed an appeal.

36368    Julie Willmot v. Paula Boutis, Iler Campbell

On appeal from the Court of Appeal for Ontario. In January, 2012, Ms. Boutis was retained by the Public Guardian and Trustee (“PGT”) to act on behalf of the applicant, Ms. Willmot, in legal proceedings that she had commenced in 2010 in Belleville, Ontario (“Belleville litigation”) with respect to the granting of an order for severance of a rural property that she owned. The Public Guardian (“PGT”) was appointed litigation guardian and the applicant, Ms. Boutis and the law firm in which she was employed, were engaged to represent her. Ms. Boutis concluded that the Belleville litigation was without merit. The PGT instructed her to settle the case by agreeing to a dismissal of the action without costs. The proposed settlement and costs award were approved by court order on May 2, 2012 with the finding that such an order was in Ms. Willmot’s best interests. Her appeal from the order was dismissed, as was her application for leave to appeal to this Court on June 13, 2013 (File no. 35171). In July, 2013, Ms. Willmot filed a statement of claim against the respondents, claiming damages for breach of solicitor-client privilege, breach of contract, breach of fiduciary duty, breach of human rights and violations of her rights under the Charter. The Ontario Superior Court granted the respondents’ motion for summary judgment and issued an order striking out the applicant’s statement of claim. The Court of Appeal dismissed the applicant’s appeal.

36377     David Prabakar Jayaraj v. Her Majesty the Queen - and between - David Prabakar Jayaraj v. Ontario Judicial Council

On appeal from the Court of Appeal for Ontario. The applicant filed five applications to quash judicial appointments; to require judicial candidates and Crown Attorneys to be appointed through written exams; to quash orders made regarding the release of recordings of court proceedings; directing the Canadian Judicial Council to conduct a formal public hearing into his complaints; quashing s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C-4; staying judicial appointments and quashing the appointments of members of the Toronto Police Board; and several related matters. The Registrar referred the applications to the judge under Rule 2.1.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Ontario Superior Court of Justice dismissed the applicant’s five applications. The Court of Appeal dismissed the applicant’s motion for leave to appeal.

36383   Best Theratronics Ltd. v. Matthew Arnone

Employment law — Unjust dismissal — Damages

On appeal from the Court of Appeal for Ontario. The applicant terminated without cause the employment of the respondent. The respondent commenced a wrongful dismissal action and moved for summary judgment. The motion judge granted the motion for summary judgment and ordered the applicant company to pay damages and a retirement allowance. The applicant company appealed seeking to set aside the order and dismiss the claim. The respondent cross-appealed seeking to increase the damages awarded for wrongful dismissal. The Court of Appeal allowed the appeal, in part, and allowed the cross-appeal. 

36331    Eleanor Denise Baines v. Linett & Timmis Barristers & Sollicitors

Civil procedure — Procedural fairness — Contracts

On appeal from the Court of Appeal for Ontario. In 2000, Ms. Baines suffered a closed head injury, but did not require treatment, in a car accident. She retained Linett & Timmis Barristers & Solicitors (the “solicitors”) to handle her no-fault accident benefits claim and her tort claim against the driver and owner of the other vehicle. She alleges that she retained them on a contingency basis, but the solicitors deny that allegation, submitting the retainer agreement in support. The solicitors commenced the action in tort. Ms. Baines rejected settlement offers in both cases. She also terminated the retainer with the solicitors. She later settled her accident benefits claim, but rejected the tort insurer’s settlement offer of $100,000, all inclusive and represented herself in the tort action. Some accommodations were made for her. The jury found the driver and the owner of the other car 90% responsible for the accident and Ms. Baines 10% responsible, and awarded Ms. Baines $2,000 for non-pecuniary damages and a further $2,000 for past income loss. On a motion by the defendant, the trial judge found that Ms. Baines’ injury did not meet the threshold under the Insurance Act, so he dismissed her claim for non-pecuniary loss and reduced her pecuniary loss claim to zero because the award was less than the non-fault benefits she had already received. He also noted that the medical evidence did not establish on a balance of probabilities that she had suffered any permanent impairment of a physical or mental function. Her appeal of the jury’s decision was dismissed by the Divisional Court, as were her motion for an extension of time to seek leave to appeal and her motion for reconsideration. During the trial, Ms. Baines also commenced a solicitors’ negligence action against the solicitors, who moved for summary judgment. At the hearing of the motion, Ms. Baines wished to read her submissions. The motions judge adjourned court, read the submissions himself, and then asked her questions in open court. She did not object. The motion for summary judgment was granted. The Court of Appeal denied her appeal.

36320    Bud Clayton, John McDougall, David Jones and Denis Doyle v. Janet Gutowski

Torts – Libel and slander – Privilege

On appeal from the Court of Appeal for Ontario. The parties are elected members of the council of the County of Frontenac, in Ontario. At a regular municipal council meeting the applicant Jones made a motion, seconded by Mr. Doyle and approved by the other two applicants, alleging that the respondent had engaged in corrupt or improper behaviour such as “peddling of political favours” so as to lose the trust of council. Mr. Jones also allegedly asked, rhetorically, “What other tricks has she been up to”? It is alleged that the applicants arranged for members of the news media to be present at the meeting so that the defamatory words were widely circulated. When the applicants refused to withdraw their motion and apologize or provide further evidence, the respondent commenced an action for defamation. The applicants pleaded, inter alia, absolute privilege and qualified privilege. They brought a motion for a determination of a question of law as to whether the allegations of defamation should be struck on the basis that the words were uttered on an occasion of absolute privilege. The Ontario Superior Court of Justice dismissed the applicants’ motion seeking to strike the respondent’s claim or have it held statute barred. The Court determined the question of law by holding that municipal councillors do not enjoy absolute privilege for comments made in the course of council meetings. The Ontario Court of Appeal dismissed the appeal.