37081  Tyrone Daum v. Michael John Clapci


Commercial law – Corporations – Trusts – Breach of trust

The parties entered into a trust agreement under which Mr. Clapci loaned Mr. Daum’s numbered company money to pay out a mortgage on a hotel property. He became the sole director of the numbered company and was made bare trustee, for Mr. Daum, of 82% of its shares and owner of the other 18% of the shares. The parties’ business relationship deteriorated. Mr. Clapci shut the hotel in November 2010 and it was left empty. Mr. Daum then made an unmet demand for return of his shares. The hotel’s insurer refused to maintain replacement coverage in a hotel left empty over the winter, but Mr. Clapci did not obtain replacement insurance. The hotel was destroyed in a fire in March 2011, and the insurer paid about $500,000 less than it would have paid had replacement coverage been in place.

The trial judge granted much of Mr. Daum’s claim for recovery and largely dismissed Mr. Clapci’s counterclaim. The Court of Appeal allowed Mr. Clapci’s appeal, but dismissed Mr. Daum’s cross-appeal.

37061  Kwok Kin Kwong v. Minister of Citizenship and Immigration Canada


Immigration – Temporary residents – Inadmissibility

An officer of Citizenship and Immigration Canada denied Mr. Kwong’s request for a temporary resident permit in order to see his elderly mother in Canada. The officer based his decision on a refusal of Mr. Kwong’s permanent resident application in 1999. At that time, Mr. Kwong was found to be inadmissible in Canada on grounds of criminality and involvement with organized crime because he kept several “bawdy houses” in Hong Kong, an act which, if committed in Canada, would have been an offence under the Criminal Code, R.S.C. 1985, c. C-46, at the time.

Mr. Kwong applied for judicial review of the officer’s decision. The Minister responded to the application and brought a motion that certain records subject to a confidentiality order issued in the 1999 visa decision and relied on by the officer in this case, be removed from the court record, that all copies of the records be re-sealed and returned by Mr. Kwong and his solicitors to the Minister, and that Mr. Kwong and his solicitors destroy any notes relating to those records. The Minister submitted that the confidential records were inadvertently disclosed to Mr. Kwong in response to an access to information request. The Minister also brought a motion for an order dismissing the application as moot because a separate visa application had been approved for Mr. Kwong to attend his mother’s funeral. Mr. Kwong opposed both motions. The Federal Court granted the Minister’s motion and dismissed the application for judicial review. The Federal Court of Appeal issued a direction to the Registrar to not accept filing of a notice of appeal or notice of motion.

37035  Enbridge Gas New Brunswick Limited Partnership, as represented by its general partner, Enbridge Gas New Brunswick Inc., Enbridge Energy Distribution Inc. and Enbridge Inc. v. Province of New Brunswick


Evidence – Disclosure – Solicitor-client privilege

During pre-trial disclosure proceedings, the Province provided Enbridge with an Affidavit of Documents in which an agent of the Crown disclosed 9,686 documents, of which privilege was claimed over 3,606 documents. Enbridge moved for an order requiring disclosure of the latter documents on the basis that the claims were improper. Prior to the hearing of the motion, the number of documents in dispute was reduced to approximately 800. The disputed documents included were grouped in four categories: internal employee documents, which were said to transmit, comment upon or otherwise reveal the substance of legal advice; documents on which the solicitor was copied, and which were created for the direct purpose of seeking or obtaining legal advice; communications through intermediaries, and which are said to involve agents of the Province of New Brunswick in furtherance of the solicitor-client relationship; and documents over which public interest immunity was claimed.

The motions judge ordered all of the documents disclosed, with the option to have individual documents reviewed, on leave. The Court of Appeal allowed the Province’s appeal.

37090  Lesley Cabott v. Urban Systems Ltd.


Employment law – Wrongful dismissal – Notice period

The applicant Ms. Cabott worked as a professional planner and supervisor at Urban Systems Ltd. (“Urban Systems”). Urban Systems terminated her employment without cause just short of 14 months. Ms. Cabott received two weeks’ termination pay in accordance with statutory requirements and a further 12 weeks’ salary in lieu of notice. At the time of termination, Ms. Cabott was 52 years old. She holds a Master’s degree in town and regional planning and has extensive work experience in planning and development. Ms. Cabott commenced a wrongful dismissal action against her former employer. The Supreme Court of the Yukon Territory allowed the wrongful dismissal claim. The Court of Appeal of the Yukon Territory allowed the appeal as the notice period varied.

37040  Haiyan Gong v. Minister of Citizenship and Immigration


Charter of Rights and Freedoms – Constitutional law – Immigration

In 2006, Ms. Gong applied for permanent residency as a Foreign Skilled Worker. By 2008, there was an enormous backlog of applications. In response, amendments were introduced to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and Ministerial Instructions governing eligibility and processing have been issued. A large group of Foreign Skilled Worker applicants affected by the changes applied for judicial review. They were brought under case management and agreed to a Protocol. Judgments in representative proceedings have been released. Ms. Gong is the lead litigant for a subgroup of applicants. In addition to seeking an order in mandamus to compel processing of her visa application, she also submitted questions to the Federal Court for certification for appeal. Section 74(d) of the Immigration and Refugee Protection Act states that an appeal from a judicial review in a matter covered by the Act may be made only if the reviewing judge certifies that a serious question of general importance is involved and states the question. Russell J. dismissed the application for mandamus and refused to certify questions. Ms. Gong sought to file a Notice of Appeal in the Federal Court of Appeal. Near J.A. issued a Direction that “The Registry shall not accept for filing the Notice of Appeal filed by M[s]. Gong, given that no question of general importance has been certified in this immigration matter”. The Registry did not accept Ms. Gong’s Notice of Appeal.

37103  Curtis James Haas v. Her Majesty the Queen


Criminal law – Manslaughter – Intervening act

The Applicant, Mr. Haas, brought a woman, H to his apartment where he had a supply of street morphine. H took some of Mr. Haas’ morphine pills. Mr. Haas later noticed that H was not breathing and called 911. H was rushed to hospital but died from a morphine overdose. The trial judge found that H had consumed at least 16 morphine pills. Mr. Haas was convicted of unlawful act manslaughter. Mr. Haas appealed arguing that the trial judge erred in determining that the element of causation had been established, submitting that voluntary consumption of morphine pills by H was an intervening act that broke the chain of causation. The appeal was dismissed.

37089  9090-5647 Québec inc. v. City of Sainte-Julie


Municipal law – Zoning – Existence and scope of acquired rights

The applicant (“Récupération Charland”) owned land in the City of Sainte‑Julie on which it operated a business involving, among other things, the storage and recovery of scrap metal. It purchased the immovable in 2000 from the Lussier family, which had carried on the same type of business starting in the late 1950s. Such use had been prohibited within the City since at least 1976.

Récupération Charland’s activities changed over the years. In 2010, the City applied to the Superior Court under s. 227 of the Act respecting land use planning and development, C.Q.L.R., c. A‑19.1, to put a stop to Récupération Charland’s activities, since it was of the view that they were not uses permitted by the zoning by‑law.

The Superior Court allowed the action in part. The judge found that some of Récupération Charland’s activities were non‑conforming but that scrap metal storage and recovery were protected by acquired rights, even if the activities had intensified over the years. The Court of Appeal allowed the appeal, finding that the business had no acquired right with respect to scrap metal storage and recovery activities. It explained that the circumstances surrounding the City’s adoption of an “amnesty” by‑law in 1994, along with the former owner’s participation in the process, showed that the former owner had abandoned its acquired right at that time in an unequivocal, though implicit, manner.

37020  Marie-Anne Jean v. Canadian Broadcasting Corporation


Human rights – Right to equality – Discrimination based on age

The applicant Ms. Jean was an employee of the Canadian Broadcasting Corporation (“CBC”). While working as an assignment assistant in the newsroom listening centre, she applied for a caption editor position. In May 2007, the CBC informed her that she had been eliminated from the competition because she had obtained a mark of only 41.5% on the mandatory French test. Ms. Jean filed a complaint with the Canadian Human Rights Commission (“Commission”) alleging discrimination based on age.

The Commission designated an investigator. Following his investigation, the investigator recommended that the complaint be dismissed. The Commission dismissed the complaint under s. 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, c. H‑6, finding that an inquiry into the complaint was not warranted in light of its investigator’s report.

The Federal Court dismissed the application for judicial review. In Gagné J.’s view, the Commission had satisfied the applicable procedural fairness requirements and its decision was not unreasonable. The Federal Court of Appeal dismissed the appeal.