Salomon v. Matte‑Thompson, 2019 SCC 14

Law of professions — Lawyers — Professional liability — Duty to advise — Duty of loyalty — Lawyer recommending financial advisor to clients — Clients investing millions of dollars with recommended financial advisor's firm

On appeal from a judgment of the Quebec Court of Appeal (Kasirer, Vauclair and Parent JJ.A.), 2017 QCCA 273, setting aside a decision of Dulude J., 2014 QCCS 3072.

In 2003, a lawyer introduced two clients to his financial advisor and personal friend, and recommended that they consult him. In the following four years, the clients ended up investing over $7.5 million with the recommended financial advisor's investment firm. Over the course of those four years, the lawyer repeatedly endorsed the recommended advisor as a financial advisor and encouraged his clients to make and retain investments with the investment firm. In 2007, the recommended advisor and his associate disappeared with the savings of around 100 investors, including those of the lawyer's clients. The clients instituted legal proceedings, claiming that the lawyer and his law firm were professionally negligent in two ways: first by breaching their duty to advise them and second, by disregarding their duty of loyalty to them.

The trial judge dismissed the claim. The Court of Appeal concluded that the trial judge had made reviewable errors, and it reversed her judgment. In its opinion, the trial judge had viewed the lawyer's acts and their consequences through a distorting lens which had led her to erroneously assess the evidence in isolated silos, without the insight provided by a global analysis. The Court of Appeal ordered the lawyer and his law firm jointly to fully compensate the clients for their losses.

Held (Côté J. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.:

The Court of Appeal had a sufficient basis for intervening and reversing the trial judge's decision. It properly applied the standards of appellate review, as imposed by Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The professional liability of the lawyer and the law firm for the clients' losses has been established. Findings with respect to fault involve questions of mixed fact and law and findings with respect to causation, questions of fact. In both situations, absent a palpable and overriding error, an appellate court must defer to the conclusions reached by the trial judge. It can only intervene if there is an obvious error in the trial decision that is determinative of the outcome of the case. The fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made. An appellate court must identify a crucial flaw in the lower court's decision, and a distorting lens, that is, a lens through which a trial judge assessed the evidence and that had a distorting effect, cannot be invoked as a substitute for identifying a reviewable error or to mask the fact that an error identified by an appellate court does not meet the high standard imposed by Housen. In the case at bar, the Court of Appeal held that the distorting lens through which the trial judge has viewed the evidence — in this case a narrow, siloed approach — had led her to make precisely identified palpable and overriding errors. The notion of a distorting lens was nothing more than a metaphor the Court of Appeal used to explain why the standard of appellate review established in Housen was met; it was not used to mask an absence of palpable and overriding errors. The Court of Appeal did not err by employing the notion of a distorting lens in determining whether the trial judge had made palpable and overriding errors.

Where the first court of appeal has justifiably intervened in the trial judgment and disagreed with the trial judge, the Court will intervene only if its own disagreement stems from a clear satisfaction that an error has occurred in the first appellate court's assessment of the facts. The focal point of the analysis that the Court — as the second and final court of appeal — has to perform in applying the Housen standards of review is the decision of the first court of appeal, not that of the trial judge. The onus is on the appellants to demonstrate an error in the court of appeal's decision. Here, the appellants did not satisfy their onus. The Court of Appeal did not err by concluding that the trial judge had made palpable and overriding errors, by interfering with the trial judge's findings relating to the lawyer's duty to advise and duty of loyalty, nor by interfering with the trial judge's findings that the lawyer's fault had not caused the clients' losses. There is no reason for the Court to interfere with the Court of Appeal's findings.

The relationship between lawyers and their clients can usually be characterized as a contract of mandate. Although lawyers, as mandataries, do not guarantee the services rendered by professionals or advisors to whom they refer their client, they must nevertheless act competently, prudently and diligently in making such referrals, which must be based on reasonable knowledge of the professionals or advisors in questions. Lawyers who refer clients to other professionals or advisors have an obligation of means, not one of result. They must be convinced that the professionals or advisors to whom they refer clients are sufficiently competent to fulfill the contemplated mandates. Referral is not a guarantee of the services rendered by the professional or advisor to whom the client is referred, but it is also not a shield against liability for other wrongful acts committed by the referring lawyer. In the instant case, the lawyer had done far more than merely make a referral. It was the entirety of his conduct that led the Court of Appeal to hold the lawyer and his law firm liable in the circumstances. The Court of Appeal's decision did not broaden the basis of liability for lawyers who refer clients to other professionals or advisors.

A lawyer's duty to advise is threefold, encompassing duties to inform, to explain, and to advise in the strict sense. It is inherent in the legal profession and exists regardless of the nature of the mandate. Its exact scope depends on the circumstances, including the object of the mandate, the client's characteristics and the expertise the lawyer claims to have in the field in question. When lawyers do provide advice, they must always act in their clients' best interests and meet the standard of the competent, prudent and diligent lawyer in the same circumstances. Any advice lawyers give that exceeds their mandate may, if wrongful, engage their liability. Here, the Court of Appeal had sufficient basis to intervene and find that the lawyer had failed to advise his clients as a competent, prudent and diligent lawyer would have done. It properly and precisely identified palpable and overriding errors made by the trial judge in her assessment of the parties' relationships, which had a direct impact on her findings regarding the scope of any wrongful advice given. When properly assessed as a whole, as the Court of Appeal did, the evidence reveals that the lawyer's advice and reassurances were all part of a single continuum, and that placing them in separate silos would be artificial. The lawyer breached his duty to advise by recommending a non-diversified investment in offshore hedge funds to clients whose primary goal was to preserve the capital, by recommending financial products without performing due diligence and by repeatedly reassuring his clients that their investments gave them security of capital.

As mandataries, lawyers also have a duty to avoid placing themselves in situations in which their personal interests are in conflict with those of their clients. The duty to avoid conflicts of interest is a salient aspect of the duty of loyalty they owe to their clients. The duty of loyalty shields the performance of the lawyer's duty to advise clients from the taint of undue interference. In the instant case, the Court of Appeal was justified in finding that the lawyer's personal and financial relationship with the recommended advisor had placed him in a conflict of interest and that he had neglected his clients' interests. The trial judge adopted an unduly restrictive approach in analyzing the principles relating to conflicts of interest, which tainted her entire analysis concerning the breach of the lawyer's duty of loyalty. A proper consideration of the evidence as a whole leads to the conclusion that this very close relationship affected the lawyer's objectivity in advising his clients. The lawyer's divided loyalties led him to neglect his clients' interests: he disregarded his duty of confidentiality regarding his communications with them and teamed up with the recommended advisor in an attempt to convince them not to withdraw their investments.

More than one fault can cause a single injury so long as each of the faults is a true cause, and not a mere condition, of the injury. A fault is a true cause of its logical, immediate and direct consequences. This characterization is largely a factual matter, which depends on all the circumstances of the case. A person who commits a fault is not liable for the consequences of a new event that the person had nothing to do with and that has no relationship to the initial fault. Two conditions must be met for the principle of novus actus interveniens to apply. First, the causal link between the fault and the injury must be completely broken. Second, there must be a causal link between that new event and the injury. A client's ability to rely on advice given by his or her lawyer is central to the lawyer-client relationship and a client's acceptance of a lawyer's negligent advice cannot shield the lawyer from liability. Fraud committed by a third party also does not shield from liability persons who failed to take required precautions. Where the risk of a decline in market prices or fraud by a third party materialize, and where lawyers have failed to abide by the standards of professional conduct that are meant to protect their clients against these very risks, they may be liable for their clients' investment losses. Here, the trial judge's findings regarding the extent of the faults committed by the lawyer no doubt had an impact on her causation analysis. Assessing the evidence in separate silos based on the timing of the events and the specific funds that had been recommended was artificial. The trial judge's causation analysis was also distorted by her erroneous finding that the lawyer had not breached his duty of loyalty. Taken together, the lawyer's faults with respect to both his duty to advise and his duty of loyalty were a true cause of the losses suffered by his clients. The fraud did not break the chain of causation — no losses would have been suffered without the faults first committed by the lawyer.

Per Côté J. (dissenting):

The appeal should be allowed. The Court of Appeal should not have substituted its own view of the case for that of the trial judge as there were no palpable and overriding errors in her key findings. The Court of Appeal wrongly intervened on the basis of mere differences of opinion regarding the assessment of the evidence, which is clearly inconsistent with the role of an appellate court. When a first appellate court interferes with a trial judge's findings in the absence of reviewable errors, it is the Court's role to step in and to restore the trial judge's decision.

On questions of fact or of mixed fact and law, an appellate court cannot make its own findings and draw its own inferences unless the trial judge is shown to have committed a palpable and overriding error. As a precondition to intervening in a trial judge's decision, the appellate court must point to a specific and identifiable error that amounts to more than a divergence of opinion and that error must be shown to be determinative of the outcome of the case. The identification of a palpable and overriding error does not require a review of the evidence as a whole. The focus of the review is the trial judge's reasons and, if need be, specific pieces of evidence to which the appellant draws the attention of the appellate court to show that a given finding is unsupported by the evidence. It would be inappropriate for the appellate court to conduct its own assessment of the evidence and then to take note of points of disagreement with the trial judge's findings and hold that those findings result from palpable and overriding errors in order to justify intervening. Appellate courts are, in comparison to trial judges, ill-equipped for the task of fact-finding and must thus leave the task to trial judges.

The distorting lens metaphor does not dispense with the requirement of identifying reviewable errors in accordance with the standards articulated in Housen. A "distorting lens" cannot justify a wide-ranging review of the entire record unless adopting the lens is shown to be, in itself, a reviewable error. The distorting lens metaphor may arguably be useful to illustrate how certain palpable errors taint the analysis of the evidence to the point of having an overriding effect, but a metaphor is not a full explanation. The appellate court must explain why the trial judge erred by viewing the case through the impugned "distorting lens", why that error amounts to more than a mere divergence in opinion, and precisely how it distorted the trial judge's analysis and affected the outcome of the case.

Part of the Court's role as a second and final court of appeal is to ensure that a trial judge's findings of fact or of mixed fact and law remain undisturbed unless a palpable and overriding error is established. Although the focal point of the Court is the first appellate court's decision, not that of the trial judge, the Court must inevitably return to the trial judge's reasons in order to determine whether the first appellate court correctly identified reviewable errors. In that regard, the Court should not defer to the first appellate court with respect to the identification of reviewable errors. When the Court reviews a decision in which the first appellate court has substituted its own findings of fact or of mixed fact and law for those of the trial judge, it must first inquire into whether the first appellate court correctly identified reviewable errors. If it did not, the trial judge's findings must be restored regardless of the merits of the first appellate court's findings. If, however, the Court agrees that the intervention was warranted, it must ask whether the first appellate court has erred in making its own independent assessment of the relevant evidence. It is only at this step that the Court will show a certain deference and will therefore avoid intervening unless clearly satisfied that the first appellate court's findings are erroneous.

In the instant case, the trial judge did not make a palpable and overriding error with respect to fault and causation. The Court of Appeal merely preferred a different "lens" than the one used by the trial judge. Further, it relied on a broad reassessment of the evidence in order to identify the purported errors, which is at odds with Housen and its progeny. The Court of Appeal's intervention was unwarranted and the Court must intervene to restore the trial judge's findings.

Whenever lawyers recommend other professionals, or express confidence in them, they must meet the standard of a reasonably competent, prudent and diligent lawyer in the same circumstances. Lawyers should make such inquiries as will enable them to acquire reasonable knowledge of professionals they recommend unless they already have relevant experience dealing with them. Not every professional error made in making such inquiries — or in failing to make them — will amount to a fault if the lawyer's conduct does not depart from the standard expected, and courts must be careful not to assess recommendations in light of facts discovered subsequently. Moreover, referring lawyers are not required to monitor the advice given by the professionals they recommended, as this would defeat the purpose of referral.

In the instant case, the Court of Appeal did not identify a specific reviewable error in the trial judge's reasons in relation to the lawyer's initial recommendation and later expressions of confidence. The lawyer did not commit a fault in recommending the investment firm and the financial advisor and in expressing confidence in them. While the lawyer had a duty to advise both his clients and a duty of loyalty to both of them, those duties were largely circumscribed by the very nature and scope of his mandates.

The precise scope of a mandate does not always limit a lawyer's duties, but it is certainly one of the main considerations for a judge when assessing professional liability. In the present case, as the lawyer had had no specific mandate with regard to the clients' investments, it was appropriate for the trial judge to eschew an overly broad approach to liability. The lawyer's confidence in the competence and probity of the investment firm and the recommended advisor was based on reasonable knowledge. He therefore acted as a reasonably competent, prudent and diligent lawyer in the circumstances.

A lawyer's duty to advise generally includes obligations to inform the client of the relevant facts, to explain available options and their implications, and to recommend a course of action. Yet, the precise content of that duty is highly dependent on the circumstances, including the scope of the mandate, the obligations assumed by the lawyer and his or her areas of expertise. In this case, there is no palpable and overriding error in the trial judge's finding that the lawyer's only fault relating to his duty to advise was to recommend specific investment products. As the trial judge concluded, the lawyer failed to act as a reasonably competent, prudent and diligent lawyer in recommending specific investment products and in volunteering investment advice even though such advice fell outside of the limits of his mandates. In so doing, he breached his duty to advise. Indeed, to the extent that a lawyer does provide advice, he must meet the standard of a reasonably competent, prudent and diligent lawyer in the same circumstances irrespective of the scope of his mandate. The Court of Appeal had some basis for concluding that the lawyer had committed the same faults in respect of both his clients, but even if this error is assumed to be palpable, it did not affect the outcome of the case. This error did not justify the Court of Appeal's conducting a broad reassessment of the evidence for the purpose of finding other potential errors.

The analysis of an alleged fault related to the duty of loyalty involves a question of mixed fact and law and, unless a pure question of law can be extricated, the appropriate standard is that of palpable and overriding error. An extricable question of law generally concerns a mischaracterization of the applicable legal test or a failure to consider a required element of that test. The analysis of an alleged conflict of interest is inherently fact-based and alleged conflicts must be assessed on a case-by-case basis. Not every potential violation of the duty of loyalty will give rise to an action in civil liability. The court must analyze the nature and the circumstances of the alleged conflict for the purpose of characterizing the violation and, if warranted, determining the appropriate remedy.

A trial judge does not have to discuss in detail every single fact alleged by the parties or every piece of evidence and declining to draw an inference falls squarely within its purview. The question is not whether the trial judge brushed aside elements that the court of appeal deemed important, but whether those omissions might have affected the conclusion. Here, the Court of Appeal erred in interfering with the trial judge's finding that the lawyer had not breached his duty of loyalty to his clients. It proceeded to revisit the issue of conflict of interests by applying the standard of correctness, as if a question of law had been identified. Yet, the Court of Appeal has not suggested that the trial judge failed to identify the correct legal principles applicable to the alleged fault related to the duty of loyalty or that there is an error in the trial judge's characterization of the applicable legal test. The Court of Appeal failed to identify a palpable and overriding error and impermissibly reassessed the evidence as a whole on the basis of a disagreement over the weight to be given to the evidence. The fact that the Court of Appeal would have weighed the evidence differently, or drawn different inferences, does not justify its intervention. Even if the trial judge did not address certain aspects of the professional relationship between the lawyer and the recommended advisor, especially the disclosure by the former of communications with his client and the fact that he had cooperated extensively with the recommended advisor and the investment firm on at least one occasion, those omissions did not affect her conclusions. The trial judge properly considered the factors that could have cast doubt on the lawyer's undivided loyalty and commitment to his clients, that is, his friendship with the recommended advisor and their financial relationship, including the gifts or commissions he had received. The conclusion that these factors were not enough to have placed the lawyer in a position where his personal interest conflicted with that of his clients was open to her, and is entitled to deference.

A fundamental principle of civil liability is that a person is liable only for injury caused by his or her own fault. A true cause is established when the plaintiff proves that the injury is a logical, immediate and direct consequence of the fault. It does not suffice to show that the fault increased the likelihood of the injury occurring if there is no evidence that the fault directly caused the injury either in whole or in part. The analysis of causation remains a context-based exercise which does not lend itself to legal theorizing. It is up to the trier of fact to draw a line, or identify a breaking point, between the consequences that flow directly and immediately from the fault and the others. Proving breaches of a lawyer's professional duties does not suffice to establish civil liability in the absence of a causal link to an injury.

In the instant case, the Court of Appeal should not have completely reassessed the evidence and interfered with the trial judge's conclusions regarding causation of the basis of the distorting lens metaphor. It was open to the trial judge to find that the fraud was the only true cause of the losses and that the recommendation of the investment firm and financial advisor was not close enough to the injury to qualify as a logical, direct and immediate cause. With respect to the duties of loyalty and confidentiality, it is unclear how the alleged breaches might have caused the losses. Moreover, even if the lawyer did commit additional faults related to his duty to advise and his duties of loyalty and confidentiality after he had become aware of a news article raising doubts about the firm's practices, the outcome would be the same as the funds were no longer recoverable by that time. Hence, any faults occurring after that date had no consequence on the losses.

SCC File No. : 37537

Reasons for Judgment: Gascon J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. concurring)

Dissenting Reasons: Côté J.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38355

Ebrahim Toure v. Minister of Public Safety & Emergency Preparedness and Attorney General of Canada - and - Attorney General of Ontario (Ont.)

Charter of Rights and Freedoms – Fundamental justice – Cruel and unusual treatment – Habeas corpus – Immigration

The immigration claim of the applicant, Ebrahim Toure, was denied in 2012. After failing to report for a required interview with Canada Border Services Agency ("CBSA"), he was arrested and detained at an immigration holding center ("IHC"). At his detention review, he was found to be a flight risk and his continued detention was ordered. The CBSA attempted to remove Mr. Toure to Guinea but he was refused entry by Guinean authorities as his birth certificate was fraudulent and he told authorities he had status in the Gambia. Upon returning to Canada in April 2013, Mr. Toure was detained in a maximum security jail because he was deemed a flight risk and was unlikely to appear for removal.

Mr. Toure commenced an application for release from immigration detention pursuant to the Habeas Corpus Act, R.S.O. 1990, c. H.1, and ss. 7 , 9 , 10 (c), 12 and 24 of the Canadian Charter of Rights and Freedoms . The application judge dismissed the habeas corpus application but found that the applicant's s. 12 Charter rights were violated. A section 24(1) remedial order was made that the applicant be moved from the maximum security facility to the IHC pending future detention reviews and removal.

The applicant's appeal of the habeas corpus application was dismissed. The respondent's cross-appeal from the application judge's s. 24(1) remedial order was allowed.

38273

Alberta Human Rights Commission (Director), Farhat Amir (on behalf of Sarmad Amir) and Shabnam Nazar (on behalf of Naman Siddique) v. Webber Academy Foundation (Alta.)

Charter – Freedom of religion – Administrative law – Appeals – Boards and tribunals

Sarmad Amir and Naman Siddique are practicing Sunni Muslims who attended Webber Academy – a non-denominational private school – in 2011 and 2012. After enrollment, the students were informed by Webber Academy that during school hours they must either pray off campus or on campus without saying prayers aloud, bowing or kneeling. Their parents brought a complaint of discrimination on their behalf to the Alberta Human Rights Tribunal. The Tribunal made a prima facie finding of discrimination in favour of the students. Webber Academy appealed to the Court of Queen's Bench which was dismissed. Webber Academy appealed to the Court of Appeal, making Charter arguments for the first time. The Court of Appeal ordered a de novo hearing with a new Tribunal panel.

38356

Hassan Hashemi v. Christopher Kennelly and Jupiter Equities, LLC. (Ont.)

Property – Real property – Sale of land – Agreement of purchase and sale – Breach – Adjournment

The respondent, Christopher Kennelly agreed to purchase real estate in Niagara-on-the-Lake from Maryam Furney. A deposit of $40,000 was provided to Ms. Furney's lawyer. The respondent, Jupiter Equities LLC, a company Mr. Kennelly controlled, provided the funds for the deposit. When the purchase agreement was entered into, there were a number of encumbrances registered on title. The encumbrances included three mortgages as well as a caution registered by an individual who had previously agreed to purchase the property in a transaction that did not close. The purchase agreement provided that the closing date would be February 14, 2017, but the seller had the option to delay the closing up to two weeks. The purchase agreement also provided that no existing encumbrances would be assumed by the buyer or remain on title after closing, and that the seller would remove the caution.

Ms. Furney later assigned her rights under the purchase agreement to the applicant, Hassan Hashemi. Mr. Hashemi was the tenant in possession of the property. He also assumed the third mortgage by way of transfer from the previous mortgagee. The transfer included assignment of power of sale rights under the mortgage, the assigning mortgagee having previously served a notice of power of sale. The purchase of the property did not close. Ms. Furney was not in a position to close on February 14, 2017 and the transaction did not close on the revised closing date of February 24, 2017 which Mr. Hashemi set after the purchase agreement was assigned to him. Mr. Kennely would not agree to extend the closing beyond that time.

Mr. Hashemi was found to have breached the purchase agreement and the respondents were entitled to the return of the deposit. Mr. Hashemi's appeal was dismissed.

38181

ENMAX Energy Corporation v. Her Majesty the Queen in Right of Alberta - and between - ENMAX PSA Corporation v. Her Majesty the Queen in Right of Alberta (Alta.)

Taxation – Assessment – Legislative scheme requires payment in lieu of tax

ENMAX Energy Corporation and ENMAX PSA Corporation are required to make payments in lieu of income tax pursuant to the Electric Utilities Act, SA 2003, c. E-5.1 and Payment in Lieu of Tax Regulation, Alta Reg. 112/2003. They dispute the amounts owing for their 2006 and 2007 taxation years. At issue is how to treat interest paid on three 10-year loans from their parent company, ENMAX Corporation. In calculating their payments in lieu of tax, ENMAX Energy Corporation and ENMAX PSA Corporation relied upon the interest rates charged on the loans. Prevailing market rates from arm's length lenders at the times the loans were advanced were lower. Alberta's Minister of Finance determined that the amounts of interest claimed were unreasonable and reassessed the payments in lieu of tax owing on the basis of lower rates. The Court of Queen's Bench allowed an appeal and set aside the reassessments. The Court of Appeal allowed an appeal and affirmed the reassessments.

38137

Agence du revenu du Québec v. Wesdome Gold Mines Ltd. (Que.)

Taxation – Tax credit relating to mining resources – Canadian exploration expense

The respondent Wesdome Ltd. is the sole shareholder of Wesdome Gold Mines inc. Following a business tax audit in November 2009, the applicant Agence du revenu du Québec (ARQ) issued four notices of assessment concerning Wesdome Gold Mines inc.

In 2012, Wesdome Ltd. filed an application to appeal the assessments to the Court of Québec. In 2014, the Court of Québec declared two of the notices of assessment invalid on the basis that they were not directed against the proper legal entity. In 2016, the Court of Québec vacated one of the notices of assessment on the ground that Wesdome Gold Mines inc. was entitled to a tax credit for certain exploration expenses. The ARQ appealed those two decisions. The Court of Appeal set aside the Court of Québec's 2014 judgment and dismissed the appeal from its 2016 judgment because it agreed with the Court of Québec that Wesdome inc. was entitled to the tax credit claimed.

38383

Shella Gardezi v. Positive Living Society of British Columbia, Ross Harvey, Alexandra Regier and Canadian Union of Public Employees, Local 3495 (B.C.)

Charter of Rights  – Civil Procedure – Costs – Security for costs

On April 22, 2015, the applicant, Ms. Gardezi, filed a complaint with the British Columbia Human Rights Tribunal (the "HRT") alleging discrimination by the employer, the Canadian Union of Public Employees, Local 3495 ("Union"), and two of the employer's employees. The HRT dismissed Ms. Gardezi's complaint as well as her request for reconsideration. Ms. Gardezi unsuccessfully sought judicial review of the HRT decisions and then filed an appeal with the Court of Appeal. Garson J.A. ordered Ms. Gardezi to post security for costs of the appeal in the amount of $1,500 in favour of the Union and stayed the underlying appeal pending payment of the security for costs. The Court of Appeal concluded that Garson J.A. set out the correct law and did not misapprehend the merits of her appeal, and dismissed Ms. Gardezi's application for review of that decision.

38250

Abella Ezra Kasheke v. Attorney General of Canada and John Baird, Minister of Foreign Affairs (N.S.)

Constitutional law — Civil procedure — Appeals

In 2014, Rev. Dr. Kasheke filed a statement of claim alleging that, when he was in Tanzania between 2010 and 2013, Canadian government officials failed to assist him and, as a result, he was injured.

In March 2017, having found that the statement of claim failed to disclose any cause of action, LeBlanc J. granted the respondents' motion for summary judgment and struck the statement of claim without leave to amend.

Rev. Dr. Kasheke appealed. The respondents brought an interlocutory motion to set aside the notice of appeal on the basis that it disclosed no sustainable grounds of appeal. The motion was heard over two days by Derrick J.A., in chambers. The respondents' motion was granted, the appeal was dismissed, and the scheduled appeal date was vacated.

38377

M.P. v. E.L. (Que.)

Family law – Custody – Parental authority – Child support

The parties ceased living together in 2013. They have a minor child. In June 2015, a judgment on the merits was rendered in relation to parental authority, custody, access and child support. The parties applied to the Superior Court to vary those conditions.

The Superior Court was of the opinion that there had been no material change in the child's circumstances that would justify conducting a custody analysis, that child support should be restored, and that there was no change that justified its intervening on the issue of access. Orders were also made in relation, in particular, to the exercise of parental authority. The Court of Appeal identified no error that would justify its intervention and dismissed the appeal.

38249

9280-1331 Québec inc. v. Ville de Montréal - and - 'Louise Ste-Croix (Que.)

Municipal law – Application for cessation of non‑conforming use – Promissory estoppel

In 2016, the respondent Ville de Montréal (City) served the applicant with an originating application under s. 227 of the Act respecting land use planning and development, CQLR, c. A‑19.1, in which it asked that the applicant cease operating its erotic massage establishment. During case management, Duprat J. rendered a judgment in which, among other things, he eliminated the issues proposed by the applicant with respect to the allegation that the City had acted improperly and that it was precluded because it had tolerated the applicant's use. The Court of Appeal refused leave to appeal from that decision. In its view, [translation] "it is well established in the case law that a city's non‑enforcement of a zoning by‑law in the past is not a defence (Polai v. City of Toronto, [1973] S.C.R. 38)" (para. 4). The Court of Appeal also found that the trial judge's elimination of those issues had not prevented the applicant from defending itself, since a trial judge "always has the power and discretion to consider any legal argument arising from the evidence of the facts before the judge" (para. 5).

38228

Gordon Aylward v. Law Society of Newfoundland and Labrador (N.L.)

Administrative law – Appeals – Standard of review – Law of professions

In 2015, Mr. Aylward filed a complaint of professional misconduct against the Legal Director and Executive Director of the Law Society of Newfoundland and Labrador, alleging inter alia, that they had breached their fiduciary duty to deal honestly and fairly with him. The Complaints Authorization Committee investigated Mr. Aylward's complaint and then dismissed it. Mr. Aylward appealed on the grounds that there had been a denial of procedural fairness and natural justice and that the Committee had displayed actual bias or a reasonable apprehension of bias. His appeal was dismissed. The Court of Appeal dismissed his appeal from that decision.

38260

Robin James Goertz v. Owners Condominium Plan No. 98SA12401 (Sask.)

Property – Condominiums – Civil Procedure  

The applicant, Mr. Goertz, was the developer of land and condominium units that became registered as Plan No. 98SA12401. Mr. Goertz owns 11 of the 44 units, 10 of which he rents and one he lives in himself. The condominium corporation board passed a resolution requiring each owner to pay a deposit of one month's rent on each unit rented by the owner. Mr. Goertz declined to pay the deposit for each of his rented units or provide the names of his tenants. Subsequently, Mr. Goertz was not allowed to vote at the Annual General Meeting. The condominium corporation commenced an action in small claims court for Mr. Goertz's unpaid contributions. In response Mr. Goertz filed an originating application in the Court of Queen's Bench. In March 2017 the action in small claims was joined with the action in the Court of Queen's Bench. The Court of Queen's Bench dismissed the action with costs to the condominium corporation. The Court of Appeal dismissed the subsequent appeal.