APPLICATIONS FOR LEAVE TO APPEAL GRANTED

Attorney General of Canada v. British Columbia Investment Management Corporation and Her Majesty the Queen in Right of the Province of British Columbia 

Constitutional law – Interjurisdictional immunity – Taxation – Goods and services tax

bcIMC was incorporated under the Public Sector Pension Plans Act as a trust company authorized to provide investment management services as part of a restructuring of the provincial public-sector pension system. bcIMC manages certain assets in pooled investment portfolios pursuant to the Pooled Investment Portfolios Regulation. The majority of the funds held by bcIMC are investments of the five major B.C. public-sector pension plans. bcIMC provides investment management for these funds.

bcIMC was assessed for GST owing in relation to the provision of investment management services for the pooled portfolios at $40,498,754.94, exclusive of interest and penalties. bcIMC filed without prejudice notices of objection to the assessments, which it was required to do in order to preserve its rights to challenge them.

The Supreme Court of British Columbia granted a declaration that the management services performed by bcIMC in relation to those assets are not subject to taxation by Canada under the Excise Tax Act, R.S.C. 1985, c. E‑15 . At the same time, a declaration was granted that bcIMC is bound by the provisions of two agreements between Canada and British Columbia, the RTA and the CITCA, that may require bcIMC to collect and remit certain taxes.

Her Majesty the Queen v. Dean Daniel Kelsie  (N.S.)

Criminal law – Evidence – Co-conspirators hearsay – Charge to jury

In October 2000, Sean Simmons was fatally shot. A group of drug dealers planned and deliberated the murder. Mr. Kelsie was a member of the drug dealing group but was not involved in any advance planning. He joined the conspiracy at the last minute. Moments before the shooting, he was told that he had to do it and handed a gun. He agreed and was shown how to use the gun. In a statement to police, he said that when he took the gun, he thought they were only going to teach someone a lesson. Mr. Kelsie and another man went to confront the victim. In his statement to the police, Mr. Kelsie said that he backed out on the way, the other man took the gun and shot Mr. Simmons, and then the other man gave the gun back. The Crown argued at trial that Mr. Kelsie was the shooter or Mr. Kelsie aided the other man in his murder of Mr. Simmons. A jury convicted Mr. Kelsie of first degree murder and conspiracy to commit murder. The Court of Appeal found errors in the jury charge, overturned the conviction and ordered a new trial.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

Aldège Banville v. Her Majesty the Queen  (F.C.)

Civil procedure – Motions to set aside – Authority of res judicata

The applicant Mr. Banville is not represented by counsel. In the Federal Court, he applied to set aside two judgments: one rendered by the Federal Court in 1998 (Entreprises A.B. Rimouski Inc. v. Canada, T‑2674‑92) and a second rendered by the same court in 2005 (Entreprises A.B. Rimouski Inc. v. Canada2005 FC 115). The Federal Court dismissed the motion on the ground that there was res judicataand that the motion did not meet the requirements of r. 399(2) of the Federal Courts Rules, SOR/98‑106. The Federal Court of Appeal dismissed the appeal.

Albert Duterville v. D. Ian Glen, Pierre Bernier, Yves Fafard and Attorney General of Canada  (F.C.)

Appeals – Order that no further proceedings be instituted

 The Federal Court refused to rescind an order that no further proceedings be instituted by Mr. Duterville. The Federal Court of Appeal ordered that Mr. Duterville's appeal be dismissed.

Arbutus Bay Estates Ltd. v. Attorney General of Canada, Capital Regional District and Her Majesty the Queen in Right of the Province of British Columbia 

(B.C.)

Property — Real property — Land registration — Easements — Easement registered on title rectified to allow use of footpath to access public wharf but not to trespass on other lot or park

This issue in this case stems from an easement granted by a predecessor in title to the applicant, Arbutus Bay Estates Ltd., to the respondent, Her Majesty the Queen in right of the Province of British Columbia. The easement relates to a public wharf located in a water lot in Horton Bay off Mayne Island held by the Government of Canada and managed by the respondent, Capital Regional District (CRD).

The applicant commenced an action seeking a declaration that the operation of the wharf facilities interferes with its riparian rights, damages for breach of its riparian rights, an injunction restraining the respondents from interfering with its riparian rights, damages for nuisance and trespass, as well as other relief, including the cancellation of the registered easement over its lands. The applicant took the position that the wharf is also unlawful because the registered easement expired when the wharf was expanded and when the federal government turned its operation over to the CRD. The respondents, the Attorney General of Canada, the CRD and the Province opposed the applicant's claims.

The trial judge held the easement gave the public the right of access across the applicant's land to the wharf, as well as the ancillary right to park vehicles on the applicant's property on the side of the road. She also held that the easement implicitly gave consent to the interference with the applicant's riparian right to access the water from its property. In the alternative, if the easement did not give these rights, the trial judge rectified the easement to provide for the rights. She also rectified the easement so that the easement area coincided with the actual location of the wharf and the footpath leading to it, and she awarded damages of $7,500 for the infringement of the applicant's rights in this regard. Finally, the judge ruled that the easement did not expire when the CRD took over management of the wharf.

The applicant appealed the judge's rulings regarding the interpretation, rectification and non-expiry of the easement. Canada and the CRD cross-appealed the $7,500 damage award.

The Court of Appeal held the trial judge erred in interpreting the easement to provide for public access to the wharf, but upheld her holdings with respect to rectification. The appeal was allowed to the limited extent of holding that the easement did not include an ancillary right to park on the applicant's property outside the easement area. The cross-appeal was allowed and the $7,500 damages award set aside.

In supplementary reasons, the applicant's application to reopen the appeal was allowed. The Court of Appeal found CRD liable in trespass for the parking of its employee's vehicle on the applicant's land and awarded damages for the trespass in the amount of $2,000. The applicant's trespass claims against the Province and Canada were dismissed.

X v. Her Majesty the Queen  (Que.)

Criminal law – Sexual assault – Unreasonable verdict

The applicant was convicted of sexual assault. At the time of the events, both the applicant and the complainant were minors. The Crown's theory of the case was that the complainant was spending the night at the applicant's home and that while she was sleeping, the applicant indulged in sexual relations involving vaginal penetration from behind her without her consent. In his appeal, the applicant submitted that the trial judge had made errors of law and that the verdict was unreasonable. The Court of Appeal dismissed the appeal, finding that the trial judge had reviewed all the evidence and had weighed the strengths and weaknesses of the various witnesses' testimony in order to arrive at a reasoned conclusion on the probative value of the evidence as a whole. The court also found that the trial judge had not split the evidence in a fragmentary or unequal manner and that her reasons did not support a conclusion that she had imposed on the applicant a burden that was not his to bear.

Saïd Boukendour v. Syndicat des professeures et professeurs de l'Université du Québec en Outaouais, Université du Québec en Outaouais  (Que.)

Labour law – Duty of representation

In 2015, the Commission des relations du travail dismissed a complaint in which the applicant, Mr. Boukendour, alleged that the respondent Syndicat had breached its duty of representation under s. 47.2 of the Labour Code, CQLR, c. C-27. The Commission held that the complaint should be dismissed on the ground of res judicata. Mr. Boukendour subsequently applied unsuccessfully to the Administrative Labour Tribunal to review that decision. An application for judicial review to the Superior Court and a motion for leave to appeal to the Court of Appeal were also dismissed.  The Court of Appeal took the view that Mr. Boukendour's motion for leave to appeal concerned the application of principles that had been reiterated on numerous occasions in relation to judicial review and res judicata. Moreover, M. Boukendour's arguments had already been analyzed and rejected by three decision makers. The court concluded that Mr. Boukendour had not shown a possibility of an injustice that would warrant its intervention.

N-Krypt International Corp. v. Thierry LeVasseur  (B.C.)

Contracts – Commercial contracts – Trusts 

Mr. LeVasseur is the president and majority shareholder of Cirius Messaging Inc., a B.C. company that produces technology that enables businesses to send secure email. In 2008, the applicant, N-Krypt International Corp., became a distributor of Cirius's technology. In 2009, N-Krypt purchased shares in Cirius for $535,000 under a Subscription Agreement which included the conditions that N-Krypt would place its shares into a voting trust for ten years with Mr. LeVasseur as trustee; and that N-Krypt would waive its rights to information normally available to a shareholder. The Voting Trust Agreement provided that Mr. LeVasseur was exclusively empowered to exercise the voting rights associated with the shares. Soon after N-Krypt purchased the shares, the business relationship between Mr. LeVasseur and N-Krypt's principal deteriorated. N-Krypt demanded information about its shares and how they had been voted. Mr. LeVasseur declined to provide that information, relying on N-Krypt's agreement to waive information rights. N-Krypt then issued a petition naming Mr. LeVasseur as the sole respondent, seeking an order requiring him to account for his management of the shares and to deliver to N-Krypt information he had received in his capacity as trustee. N-Krypt also sought return of the shares or in the alternative, appointment of a new trustee. The trial judge ruled that trust law should prevail in the circumstances and made a comprehensive order outlining what Mr. LeVasseur would have to disclose. That order was overturned on appeal.

Jaspal Samra v. Keith Brennestuhl; Human Rights Tribunal of Ontario, Attorney General of Ontario, John Kromkamp; Huguette Thomson  (Ont.)

Charter of Rights  – Right to equality – Fundamental justice – Right to be heard

In 1993, Mr. Samra was involved in a paternity trial and was ordered to pay child support. Over the years, he unsuccessfully tried to have the judgment set aside because he believed the judgment had been signed before the trial had taken place. Eventually, he filed a complaint with the Human Rights Tribunal which was dismissed. His application for judicial review of that decision was also dismissed. The Court of Appeal did not grant his application for leave to appeal