APPLICATIONS FOR LEAVE TO APPEAL GRANTED
City of Montréal v. Davide Lonardi, Simon Côté Béliveau, Jonathan Franco, Jean-François Hunter
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City of Montréal v. Ali Rasouli
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City of Montréal v. Mohamed Moudrika, Jean-Philippe Forest Munguia, Jonathan Beaudin Naudi
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City of Montréal v. Éric Primeau, Steve Chaperon, Illiasse Iden, Johnny Davin, Natna Nega, Nathan Bradshaw, Maxime Favreau Courtemanche
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City of Montréal v. Natna Nega
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City of Montréal v. Benjamin Kinal, Jonathan Beaudin Naudi, Simon Légaré, Daniel Daoust (Que.)
Civil liability — Apportionment of liability — Riot causing damage
In 2008 in Montréal, a riot erupted following a win by the Montréal Canadiens hockey team. Ten of the police vehicles belonging to the applicant City of Montréal were destroyed during the riot. Some of the rioters were identified, and the City instituted separate civil actions against each of them, asking the court to find them jointly liable for the full value of the vehicle they had played a part in destroying. The courts below found the respondents liable but refused to find them jointly liable, except for two of them. The Quebec Court of Appeal dismissed the appeal and incidental appeals.
Joseph Peter Paul Groia v. Law Society of Upper Canada(Ont.)
Law of professions – Discipline – Barristers and solicitors
The applicant, Mr. Groia is a barrister and solicitor licensed by the Law Society to practise law in Ontario. As an experienced securities litigation counsel, he defended the accused in the case of R. v. Felderhof, 2007 ONCJ 345. The accused was acquitted of all charges.
The litigation was complex and protracted. From the onset, disputes arose between counsel which escalated to the point of Mr. Groia alleging serious prosecutorial misconduct by the Ontario Securities Commission (“OSC”) prosecutors. After 70 days of trial, the OSC applied for judicial review in the Superior Court. They argued that Mr. Groia had engaged repeatedly in uncivil conduct in violation of the Law Society’s Rules of Professional Conduct and that, by failing to control this unacceptable conduct, the trial judge lost jurisdiction. This application was dismissed and the matter was remitted back to the trial judge for continuation of the trial. The OSC appealed this decision to the Court of Appeal and it was dismissed.
After the trial had concluded, the respondent, Law Society of Upper Canada initiated disciplinary proceedings against Mr. Groia alleging that he had engaged in professional misconduct during his defence of his client. Neither the trial judge nor the OSC prosecutors complained to the Law Society about Mr. Groia’s conduct.
The Hearing Panel concluded that the Law Society had proven all its professional misconduct allegations against Mr. Groia. It imposed a penalty of two months’ suspension of his licence and a reprimand. On appeal, the Appeal Panel allowed Mr. Groia’s appeal in part. It affirmed the findings of professional misconduct; however, it varied the length of Mr. Groia’s licence suspension to one month. On appeal, the Divisional Court dismissed the appeal. The further appeal to the Court of Appeal was dismissed with Brown J.A. dissenting.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Steven Daniel Whipple v. Her Majesty the Queen (Alta.)
Charter – Criminal law – Sections 8 and 10
The applicant was acquitted of charges of conspiracy to traffic in methamphetamine and possession of methamphetamine for the purposes of trafficking. He and others were under surveillance as part of a drug investigation. From intercepted communications, police believed the applicant would be transporting drugs by car from British Columbia to Alberta. A General Warrant was obtained to allow police to stop the applicant and search his vehicle. The warrant stated that a ruse could be used to stop the car. The applicant was stopped for speeding and his car was searched. He was not advised initially of the full reason for his detention, although the arresting officer told the applicant within minutes of the initial stop that he was being detained due to suspicion of possession of drugs and that a drug dog would be used to search his vehicle. He was advised of his right to counsel. A quantity of methamphetamine was found. The trial judge found that the applicant’s rights had been infringed and excluded the evidence of the search. The Court of Appeal set aside the acquittals and ordered a new trial.
Syndicat des cols bleus regroupés de Montréal (CUPE-301) v. Grace Biondi (Que.)
Damages ‒ Punitive damages
Between December 5 and 12, 2004, the members of the applicant Syndicat des cols bleus regroupés de Montréal (CUPE‑301) (“the union”) engaged in pressure tactics following the implementation of a new collective agreement. The union’s actions had the effect of delaying the de‑icing of and spreading of abrasives on roadways and sidewalks in a borough of the City of Montréal (“the City”). During that period, the representative in the class action, the respondent Ms. Biondi, fell on a sidewalk. In her class action, she claimed damages for herself and $2 million in punitive damages for the members of the group she represented, namely other persons who had suffered damage as a result of falls during the period in question. The class action was instituted against the union and the City. The Quebec Superior Court allowed the motion for determination of punitive damages. The Quebec Court of Appeal allowed the motion to dismiss the appeal.
Commission des normes, de l’équité, de la santé et de la sécurité du travail v. St. Lawrence Seaway Management Corporation
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Commission des normes, de l’équité, de la santé et de la sécurité du travail v. Jacques Cartier and Champlain Bridges Inc.
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Attorney General of Quebec v. Jacques Cartier and Champlain Bridges Inc.
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Attorney General of Quebec v. St. Lawrence Seaway Management Corporation
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Attorney General of Quebec, Administrative Labour Tribunal, Construction Euler inc., Groupe Hexagone S.E.C., EBC-Pomerleau PJCC 6200 SENC, Commission des normes, de l’équité, de la santé et de la sécurité du travail (Que.)
Constitutional law – Division of powers – Occupational health and safety
The respondent St. Lawrence Seaway Management Corporation (“Corporation”) is a federal undertaking whose mandate is to operate the Canadian portion of the St. Lawrence Seaway. The respondent Jacques Cartier and Champlain Bridges Inc. (“JCCBI”) is a “parent” Crown corporation that is an agent of Her Majesty in right of Canada and whose mission includes ensuring that the Jacques Cartier and Champlain Bridges are in good condition. In 2015, the Commission des lésions professionnelles (“CLP”) found that the Act respecting occupational health and safety, CQLR, c. S‑2.1 (“AOHS”), was constitutionally inapplicable to the Corporation and JCCBI in their capacity as principal contractors. At first instance, the Commission de la santé et de la sécurité du travail (“CSST”) had found otherwise. The Superior Court dismissed the motions for judicial review. The Court of Appeal dismissed the motions for leave to appeal on the ground that [translation] “the judgments a quo find that there is abundant, clear and consistent case law in this matter and conclude that the approach [taken by the Attorney General of Quebec and the Commission des normes, de l’équité, de la santé et de la sécurité du travail] is contrary to the doctrine of interjurisdictional immunity” (para. 2).
Barry Millen, Terri Fordham, Rick Lesiuk, Floyd Stoneham, Michael Paul Pilotte and Merit Contractors Association of Manitoba v. Manitoba Hydro-Electric Board, Hydro Projects Management Association, Allied Hydro Council of Manitoba, Local Union 99 of the International Association of Heat and Frost Insulators and Allied Workers, Local Union 2034 of the International Brotherhood of Electrical Workers and Local Union 987 of the International Union of Operating Engineers (Man.)
Canadian Charter of Rights and Freedoms – Labour relations
The tendering policy of the Manitoba Hydro-Electric Board and the two collective agreements in issue require contractors working on certain Manitoba Hydro projects to agree to terms which compel the contractor’s employees to join a union designated by the collective agreements and pay applicable dues.
The applicants are individuals who work for various contractors and an organization representing non-unionized contractors. They launched a constitutional challenge, arguing that the relevant provisions of the collective agreements that create union shops and impose compulsory union dues on employees infringe ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1. They sought a declaration that those provisions, and the corresponding condition in the tender policy requiring contractors to sign on to the collective agreements, are of no force and effect. The applicants also sought a declaration that s. 76 of the Labour Relations Act, C.C.S.M., c. L-10, does not require employees to pay dues to a union that has not been chosen to represent them according to the procedure stipulated by the Act. Alternatively, they sought a declaration that if s. 76 applies, the section infringes ss. 2(b) and 2(d) of the Charter. The respondents sought a stay of proceedings, arguing that that these issues fall within the exclusive jurisdiction of an arbitrator or the Manitoba Labour Board. The Court of Queen’s Bench of Manitoba granted the motion to stay action on jurisdictional basis. The Court of Appeal of Manitoba dismissed the appeal.
Yvan Chandler v. Attorney General of Canada (on behalf of the United States of America)
Charter of Rights – Extradition – Criminal law
The Minister of Justice of Canada ordered that the applicant be surrendered to the United States of America to stand trial there on charges related to drug trafficking, including one count of conspiracy to possess with intent to distribute more than 1,000 kg of marijuana, and one of conspiracy to launder monetary instruments representing several million dollars. The applicant contested the Minister’s surrender order in the Quebec Court of Appeal on the ground that it was unjust and oppressive and would likely shock the conscience of Canadians if they were apprised of his actual situation, that is, of his state of health and that of his spouse. The applicant is diabetic and has heart problems, while his spouse has cancer. The applicant also expressed the opinion that the Minister should have paid greater attention to the possibility of the Canadian authorities laying criminal charges similar to the ones in respect of which his surrender is requested, and he even proposed to plead guilty to any such charges. The Court of Appeal dismissed his application for judicial review.
Master Corporal D.D. Royes v. Her Majesty the Queen
Canadian Charter of Rights and Freedoms – Criminal law – Constitutional law
The applicant asks the Court to declare that s. 130(1)(a) of the National Defence Act (“NDA”), which incorporates by reference almost all the offences provided for in the Criminal Code such that they constitute offences under the National Defence Act, violates the right to the benefit of trial by jury guaranteed by s. 11(f) of the Charter. The applicant was tried by a standing court martial, which found him guilty of sexual assault. He was sentenced to a term of imprisonment of 36 months. He appealed the legality of the guilty verdict as well as the military judge’s decision to dismiss his motion for an order striking down s. 130(1)(a) of the NDA on the basis that it violates s. 7 of the Charter. He did not raise a constitutional question relating to s. 11(f) until December 22, 2015, after the decision in R. v. Moriarty, 2015 SCC 55, had been rendered on November 19 of that year. The Court Martial Appeal Court of Canada dismissed the appeal on all grounds of appeal.
Pierre Lévesque v. Her Majesty the Queen
(Que.) (Criminal) (By Leave)
Criminal law – Evidence – Charge to jury – Vetrovec warning
Following a third trial, the applicant, Pierre Lévesque, was found guilty by a jury of the first degree murder of Béatrice Lavoie, a 75-year-old woman who had been beaten to death in April 1994 in the course of a home invasion for the purpose of robbery. Mr. Lévesque was also found guilty of manslaughter in the case of Ms. Lavoie’s spouse, Maurille Lepage, aged 82, who had died as a result of injuries suffered on the same occasion.
Mr. Lévesque challenged the convictions in the Court of Appeal on the grounds that the trial judge had failed to give the jury a Vetrovec warning regarding his alleged accomplice, Shawn Denver, and that the jury should not have been told that the prosecution had decided to stay the proceedings against Mr. Denver in respect of the murder of Ms. Lavoie and that Mr. Denver had been convicted of the first degree murder of Mr. Lepage. The Court of Appeal unanimously dismissed his appeal.
Smith & Nephew Inc. v. Milana Warner as Representative Plaintiff
Civil Procedure – Class Actions – Certification
In September 2013, the respondent, who is the proposed representative plaintiff, commenced an action against the manufacturer for damages resulting from the Birmingham Hip Resurfacing procedure. The statement of claim was filed under the Class Proceedings Act, SA 2003, c. C-16.5 and the respondent applied for certification of her action as a class action. The respondent’s application for certification of a class proceeding was dismissed. A majority of the Court of Appeal allowed the appeal. The matter was remitted to the trial court to resolve details respecting the definition of the class, the framing of the common issues, providing notice to class members, establishing a litigation plan, and other particulars. Slatter J.A., dissenting, would have certified the action, but differed on the class definition.
Ocean Choice International LP, by its General Partner 55104 Newfoundland and Labrador Inc. v. Landvis Canada Inc., Landvis ehf., Andrew Wissler, Gudjon Thorbjornsson and Petur Palsson
Commercial law – Contracts – Privity of contract
The applicant, Ocean Choice International LP, was created to acquire certain assets in the seafood industry. It financed the acquisition through senior debt held by a secured lender and subordinated debt held by Landvis ehf and another lender. Landvis ehf is the parent company of Landvis Canada, one of Ocean Choice’s limited partners. The relationship between the partners is governed by, among others, a Unanimous Unitholders Agreement (“UUA”). While Landvis Canada is a party to the UUA, Landvis ehf is not.
Ocean Choice sought to refinance its senior debt and secured financing with a consortium of Desjardins lenders. As a condition precedent to closing this financing, Ocean Choice had to satisfy Desjardins that all loans advanced and outstanding to it by any of the limited partners, or any affiliates or nominees of the limited partners, were subordinated to the new debt to be provided by Desjardins. Landvis ehf took the position that the terms of the Desjardins subordination agreement were commercially unreasonable and would not allow Ocean Choice to respect the obligations under its loan agreement with Landvis ehf. Ocean Choice applied for an order to compel Landvis ehf to sign the agreement subordinating its debt in favour of Desjardins. The Supreme Court of Newfoundland & Labrador dismissed the application. The Court of Appeal dismissed the appeal.
General Motors Company and General Motors LLC v. Addison Chevrolet Buick GMC Limited, Addison on Erin Mills Chevrolet Buick GMC Limited, Applewood Holdings Inc., Budds Chevrolet Cadillac Buick GMC Limited, City Buick Chevrolet Cadillac GMC Ltd., Courtesy Chevrolet Limited, Frost Chevrolet Buick GMC Cadillac Ltd., Gateway Chevrolet Inc., Hogan Chevrolet Buick GMC Limited, Humberview Inc., Leggat Chevrolet Buick GMC Ltd., Leggat Chevrolet Cadillac Buick GMC Limited, Markville Chevrolet Inc., Roy Foss Motors Ltd., Roy Foss Chevrolet Ltd., Wallace Chevrolet Cadillac Buick GMC Ltd. and Wilson Nibblet Motors Limited
Civil procedure – Pleadings – Motion to strike – Commercial law
The respondents are dealers of General Motors vehicles in the Greater Toronto Area. Their dealer agreements are with General Motors Canada Limited (GMCL). GMCL was a subsidiary of General Motors Corporation (GM) in the United States. In 2009, the auto industry in Canada and the U.S. had fallen into financial difficulty. GM commenced bankruptcy proceedings in the U.S. GM’s assets were transferred to a new company, the applicants, General Motors Company, or its subsidiary, General Motors LLC (collectively GM US). As part of the reorganization process, GM US acquired the shares of GMCL.
The governments of Ontario and Canada invested substantial funds in GM US and became shareholders. GM US then emerged from bankruptcy. As a result of the financial difficulties, GMCL restructured its dealer network by closing some dealerships, discontinuing production of some vehicles and offering opportunities to participate in new brands of vehicles. The respondent dealerships signed Dealer Sales and Service Agreements with GMCL with respect to this restructuring. The motion judge proceeded on the assumption that the agreement between the parties was a franchise agreement under the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, C. 3 (AWA).
The respondent dealerships commenced an action against the applicants. Their claim centered on the allegations that the applicants owed and breached their duty to act fairly and in good faith under the franchise agreement and at common law. The applicants brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, reg. 194 alleging it did not owe a duty of good faith to the respondent dealerships.
The motion judge agreed with the applicants and dismissed the claim. The Court of Appeal allowed the appeal and dismissed the motion to strike.
Ajay Misra v. City of Toronto, CUPE Local 79, Maureen Saltman (Ont.)
Labour relations – Unions – Exclusive right of union to represent
When the applicant was terminated from his employment with the respondent City, the respondent Union represented him in grievances before the respondent Arbitrator. She rendered her decision reinstating the applicant in his position, with seniority but without retroactive compensation, two years after the conclusion of the arbitration. Her reasons for judgment were issued a year later. The Union chose not to seek judicial review of that decision. Dissatisfied, the applicant sought judicial review. The application was quashed on the basis of union exclusivity. The Divisional Court affirmed that decision and the Court of Appeal denied leave to appeal.
Royal Insurance Company of Canada, Continental Casualty Company and Certain Underwriters at Lloyd's Under Contract No. ENC5-98 v. Michael Visocchi and Visco Engineering Inc., Hollowcore Incorporated and Prestressed Systems Inc. (Ont.)
Insurance – Liability insurance – Exclusion clause
There was a construction project to install precast concrete in a parking garage in Toledo, Ohio. The trial judge found that the engineer, Michael Visocchi, and engineering company, Visco Engineering Inc., (Visocchi and Visco) were negligent in their preparation of engineering drawings. The applicants, the third party insurers, relied on an exclusion clause. The trial judge concluded that the insurers were to indemnify Visocchi and Visco for 55 percent of the damages. The remaining 45 percent would be paid by Visocchi and Visco on a joint and several basis. The Court of Appeal allowed the appeal of Visocchi and Visco against the applicant insurers; dismissed the appeal of Visocchi and Visco against Hollowcore and Prestressed Systems Inc; the applicant insurers’ cross-appeal to reduce damages and appeal with respect to the conversion rate for U.S. funds were dismissed.
Cyrénus Dugas v. Peter Gaudet, Adam Gaudet, 508571 N.B. Limited, 100167 PEI Inc. (N.B.)
Bankruptcy and Insolvency – Legislation – Interpretation
The applicant and his wife transferred the beneficial interest in the main assets of their commercial fishing business, including a snow crab license (the “License”). The sale agreement included a warranty by the applicant that the License was “transferable” to the named purchaser, 508571 N.B. Ltd., and that the applicant would take the steps necessary to effect the transfer. A Declaration of Trust and Indemnity confirmed that Adam Gaudet and 508571 N.B. Ltd. had purchased the License and were its true owners. The respondents paid the purchase price, and over three years, the applicant continued to hold the License in his name and to act as vessel captain, with all earnings from the License going to its beneficial owners. The applicant did not submit the transfer request within the time prescribed and when he did, the Department treated it as out of time. The applicant ended the arrangement with the respondents, claiming the Department might cancel the License if they tried to transfer it. The respondents commenced an action for breach of fiduciary and contractual obligations, and the parties ultimately executed a Consent Judgment pursuant to which the applicant was to pay certain sums. When he failed to do so and made an assignment in bankruptcy, the respondents commenced the current action. The New Brunswick Court of Queen’s Bench and the appellate court held in favour of the respondents.
Sheldon Blank v. Minister of Justice (FC)
Access to information – Exemptions – Solicitor-client privilege
Sheldon Blank made an application under s. 41 of the Access to Information Act, R.S.C. 1985, c. A-1, for records dealing with the ongoing civil litigation between the parties. In response, the Department of Justice sent 194 redacted pages, claiming the redacted portions constituted exemptions under the Act. Mr. Blank complained to the Office of the Information Commissioner, however the Commissioner declared the Department had properly claimed the exemptions. Mr. Blank applied to the Federal Court for judicial review of the Department’s decision to deny him access to requested records. He also alleged bad faith and/or blameworthy conduct by the Department. While awaiting the judicial review, the Department disclosed a further 111 pages of redacted documents that were attachments to previously released documents it said had been inadvertently omitted. The Department continued to claim the same exemptions under the Act for its refusal to disclose the redacted information. Mr. Blank did not, however, make a complaint to the Commissioner in respect of the redacted attachments. The issue of the Federal Court’s jurisdiction to review the disclosure of those attachments was raised before the case management judge who deferred it to the application judge. The Federal Court dismissed the applicant’s application for judicial review under s. 41 of the Access to Information Act, R.S.C. 1985, c. A-1, for lack of jurisdiction. Nevertheless, the court found that the exemptions, in particular solicitor-client privilege, had been properly claimed and there was no evidence of abuse of process or blameworthy conduct that would vitiate that privilege. The Federal Court of Appeal dismissed the applicant’s appeal, finding the applications judge made no errors.
9229-0188 Québec inc. (SARAMAC), Schokbeton inc. and Centres d’achats Beauward Ltée v. Director of Criminal and Penal Prosecutions
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Attorney General of Quebec
Criminal law – Search and seizure – Lawyers’ professional secrecy
During searches of the applicants’ premises by the Sûreté du Québec, thousands of documents were seized and copied onto computer media. Since the applicants claimed professional secrecy in relation to several of the documents, the seized documents were filed under seal with the office of the Quebec Superior Court. Following the seizure, the respondent filed a Lavallee motion (which takes its name from Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61,  3 S.C.R. 209) seeking access to the seized documents and a ruling by the court on the application of professional secrecy.
After the motion was filed, the parties tried to negotiate a procedural protocol to identify the documents protected by professional secrecy. They asked the court to resolve their disagreement over the appointment of a computer technician to prepare and handle the computer documents. The respondent requested the appointment of a technician from the SQ’s technology division, whereas the applicants requested instead that an independent computer expert be appointed at the Crown’s expense.
The Superior Court authorized the appointment of a technician from the SQ’s technology division but found that the technician’s work should be subject to special safeguards that would have to be included in the protocol, including an oath of confidentiality, supervision by an independent lawyer and certification at the end of the mandate that confidentiality had been respected.
City of St. John's v. Willis Lynch, Wallace Lynch, Colin Lynch, Winfred Lynch, Reginald Lynch (N.L.)
Expropriation – Constructive expropriation – Compensation
The Lynch property was located in the Broad Cove River Watershed and in a Watershed zone under the City of St. John’s Municipal Plan and Development Regulations. To facilitate delivery by the City of pure and unpolluted water, the legislature prohibited building upon watershed land except in limited circumstances – only discretionary uses relating to agriculture, forestry and public utilities were permitted in the Watershed zone. However, following an inquiry to determine what level of development the City would allow on the property, the Lynches were informally advised by the City that they would not be allowed to develop the property in any manner and that the City was not willing to allow any discretionary uses or to consider any specific environmentally friendly uses. The City’s position was that the land must be kept unused in its natural state. To force the issue, the Lynches brought an application to develop a 10-lot subdivision on the property which was rejected by the City. Following that rejection the Lynches commenced an action for a declaration that the property had been constructively expropriated.
The Trial Division of the Supreme Court of Newfoundland and Labrador dismissed the respondents’ application, holding the regulation of the property by the City of St. John’s did not amount to de facto or constructive expropriation. The court further held the property did not lie within a public water supply area as defined in the Water Resources Act, S.N.L. 2002, c. W‑4.01, and therefore did not attract the compensation provision of that Act. The Court of Appeal allowed the respondents’ appeal, finding the trial judge erred and the Lynches were entitled to claim compensation from the City for constructive expropriation.
Agnes Jane Whitfield v. Bryan Whitfield (Ont.)
Evidence – Expert evidence – Admissibility
The applicant, Dr. Agnes Whitfield, sued her older brother, the respondent, Brian Whitfield, alleging various instances of historic sexual and physical abuse. Dr. Whitfield alleged that the abuse started when she was four or five years old and continued until the age of 20. According to Dr. Whitfield, she recovered memories of abuse at the age of 50. Her brother denied the allegations and counterclaimed against her for defamation.
Dr. Whitfield called a psychologist as an expert witness at trial. The trial judge found the testimony of both Dr. Whitfield and her brother equally compelling. As a result, he turned to the evidence of the expert to resolve this litigation. The judge concluded that he could use that evidence not only to support the quantification of Dr. Whitfield’s claim for damages, but also to support her case on liability. The Court of Appeal for Ontario allowed the appeal and dismissed the claim.
François Oudin v. Centre Francophone de Toronto, Inc. (Ont.)
Employment law – Termination
In 2000, Centre Francophone de Toronto, Inc. hired Mr. Oudin. The parties executed an employment agreement. In 2013, the Centre terminated his employment. He received 21 weeks of pay in lieu of notice pursuant to a termination clause in the agreement. Mr. Oudin claimed wrongful dismissal. He brought a motion for a partial summary judgment that the Centre could not rely on the termination clause. The motions judge dismissed the motion and declared that the termination clause is valid and enforceable. The Court of Appeal dismissed an appeal.
Jarvis Stewart v. Her Majesty the Queen (Sask.)
Charter of Rights – Criminal law – Appeals
In August 2012, the applicant was found guilty of obstructing a police officer in the execution of his duty arising out of a traffic stop. The applicant was granted an absolute discharge. Approximately, 2.5 years after being discharged, the applicant sought an extension of time to appeal his conviction and sentence. The applicant’s application to extend the time to appeal his conviction and sentence were dismissed by Dovell J. The Court of Appeal dismissed leave to appeal the decision of Dovell J.
Chime Tretsetsang v. Minister of Citizenship and Immigration (FC)
Immigration law – Refugee protection – Country of nationality
Under the Indian Citizenship Act, 1955, a person born in India between January 26, 1950 and July 1, 1987, is an Indian citizen irrespective of the nationality of his or her parents. Chime Tretsetsang was born in India to Tibetan parents in 1968. He lived in India until 2013 when he arrived in Canada on a fraudulent Indian passport and made a refugee claim. In his claim, he contended that he was stateless and would be deported to China on arrival in India. As an ethnic Tibetan he fears persecution from Chinese authorities for his religious beliefs and political activities; he did not claim a fear of persecution from India. While he did not have a birth certificate, he was in possession of an Indian travel document known as an identity certificate which stated his place of birth in India during the relevant time period. He traveled internationally to and from India using that document before coming to Canada to seek protection. Mr. Tretsetsang took no steps to establish or confirm his Indian citizenship while in India or Canada.
The Refugee Protection Board accepted Mr. Tretsetsang’s refugee claim. The Refugee Appeal Division allowed the Minister’s appeal, finding that Mr. Tretsetsang had a country of nationality because it was within his control to acquire Indian citizenship. The Federal Court dismissed Mr. Tretsetsang’s application for judicial review. The Federal Court of Appeal dismissed Mr. Tretsetsang’s appeal (Rennie J.A., dissenting).
Behrouz Salehi v. Association of Professional Engineers of Ontario (Ont.)
Charter of rights – Discrimination – Torts
Mr. Salehi, applicant, brought an action against the Association of Professional Engineers of Ontario (“APEO”), respondent, alleging negligence and bad faith in the processing and approval of his engineering licence application. The APEO moved for and obtained summary judgment dismissing the action. The motions judge concluded that there was no genuine issue requiring trial. In particular, he found that the APEO did not owe a prima facie duty of care to Mr. Salehi, or, if it did, it was negated by residual policy considerations. Alternatively, the motions judge found that if the APEO owed such a duty of care, it benefitted from statutory immunity for the good faith performance of its duties pursuant to s. 45(1) of the Professional Engineers Act, and Mr. Salehi had failed to establish any bad faith on its part in processing the licence application. The Court of Appeal dismissed the appeal.
Bahador Rafie Baharloo v. The University of British Columbia, Donald Brunette (B.C.)
Administrative law – Judicial review – Jurisdiction
Mr. Baharloo was enrolled in a Ph.D. program at the Faculty of Dentistry at the University of British Columbia. He failed to make adequate progress in the program, and his relationship with his supervisor, Dr. Brunette, became acrimonious. Mr. Baharloo was eventually advised that the Faculty of Graduate Studies involuntarily withdrew him from the program for failure to make adequate academic progress.
Mr. Baharloo appealed that decision to the Senate Committee of the University and filed a complaint under the Human Rights Code, R.S.B.C. 1996, c. 210. In both proceedings, he alleged discrimination by the University on the grounds of race, place of origin and mental disability. The Senate Committee dismissed his appeal, finding nothing improper or unfair in the way the University had reached its decision and no breaches of the Code. After the Senate Committee dismissed Mr. Baharloo’s appeal, the University and Dr. Brunette applied to the British Columbia Human Rights Tribunal under s. 27(1)(f) of the Code to have his human rights complaint dismissed because it had been dealt with appropriately by the Senate Committee.
Paul Slansky v. Kingsland Estates Limited, Richard Ivan Cox, Marcus Andrew Hatch, Philip St.Eval Atkinson, PricewaterhouseCoopers East Caribbean (Formerly 'PricewaterhouseCoopers') (Ont.)
Civil procedure – Costs – Costs made personally payable by solicitor
In 2007, before Donald Best was represented by Mr. Slansky, Mr. Best started an action for negligence and economic loss against 62 defendants, including some of the respondents. It was stayed on jurisdictional grounds, but, in the course of the proceedings, Mr. Best was held in contempt: 2010 ONSC 569. When he applied to purge his contempt, the affidavit he swore contained allegations against the opposite parties and their counsel. When those allegations were found to be baseless, Mr. Best was sentenced to 60 days in prison for contempt: 2013 ONSC 8025. After he repeated the allegations in a subsequent proceeding, an award of costs on a full indemnity scale was made against him: 2013 ONCA 695. Mr. Best unsuccessfully appealed that decision, and was denied leave to appeal further: 2014 ONCA 167. He applied for leave to appeal to the Supreme Court of Canada. Before leave was denied in that action, Mr. Best started a second action against 39 defendants with Mr. Slansky as his counsel, some of whom are respondents in this case. Their counsel asked Mr. Slansky to defer their motion on jurisdiction motion until a motion to strike was heard. Mr. Slansky refused. The motion to strike was granted and the action was dismissed as vexatious and an abuse of process, with costs on a substantial indemnity basis: 2015 ONSC 6269. The same reasons found that the jurisdiction motion was moot. Costs for it were awarded on a full indemnity basis. The respondents then moved under Rule 57.07(1)(c) of the Rules of Civil Procedure asking that Ms. Slansky be held jointly and severally liable with Mr. Best for all costs awarded in the respondents’ favour in the second action.
The motion was granted, and the Court of Appeal dismissed Mr. Slansky’s appeal.
Nature's Finest Produce Ltd., Kejay Farms, Kejay Investments Inc., Jason Raymond Stallaert, Kevin Cornelius Stallaert, Campbell Soup Canada and Campbell Soup Company Canada v. R & G Draper Farms (Keswick) Ltd.
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Nature's Finest Produce Ltd., Kejay Farms, Kejay Investments Inc., Jason Raymond Stallaert, Kevin Cornelius Stallaert, Campbell Soup Canada and Campbell Soup Company Canada v. R & G Draper Farms (Keswick) Ltd. (Ont.)
Contracts – Settlements – Civil procedure
The applicants purchase, process and sell vegetable produce. In 2010, they entered into an agreement to purchase 4.5 million pounds of carrots from the respondent. After the carrots were delivered, the parties agreed to reduce the purchase price to account for the fact that some of the carrots were bad. However, the applicants maintained that the parties had not agreed on a rate of payment, a term which they asserted was fundamental. As a result, they claimed no settlement had been reached. The respondent successfully sought summary judgment against the applicants. The motions judge found that a settlement had been reached. The Court of Appeal dismissed the appeal. However, it did find that the motions judge had erred in leaving it open to the applicants to proceed with their counterclaim against the respondent for having been supplied the wrong type of carrots in the first place. In the Court of Appeal’s view, given the motions judge’s finding that the parties had reached a settlement, he ought to have found an implied obligation on the part of the applicants to provide a release of their counterclaim.
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Gowling WLG (Canada) LLP is a member of Gowling WLG, an international law firm comprising the members of Gowling WLG International Limited, an English Company Limited by Guarantee, and their respective affiliates. Each member and affiliate is an autonomous and independent entity. Gowling WLG International Limited promotes, facilitates and co-ordinates the activities of its members but does not itself provide services to clients. Our structure is explained in more detail on our Legal Information page.