Judicial Committee of the Highwood Congregation of Jehovah's Witnesses (Vaughn Lee – Chairman and elders James Scott Lang and Joe Gurney) and the Highwood Congregation of Jehovah's Witnesses v. Randy Wall
Charter of Rights and Freedoms – Religious freedom – Freedom of Association
Mr. Wall was a member of the Highwood Congregation of Jehovah’s Witnesses, an unincorporated religious association. He was disfellowshipped by a Judicial Committee of elders because he was not sufficiently repentant for two incidents of drunkenness, one of which included verbal abuse of his wife. This required Jehovah’s Witnesses, including his wife and children, to shun him. He is a real estate agent and lost congregation members and other Jehovah’s Witnesses as clients. He appealed to an Appeal Committee which upheld the disfellowship decision. The Watch Tower and Bible Tract Society of Canada decided not to overturn the decision. Mr. Wall applied for judicial review. Wilson J. conducted a hearing to determine whether the Court of Queen’s Bench of Alberta had jurisdiction to hear the application. The Court of Appeal dismissed the appeal.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Lafarge Canada Inc. and Marie De Grosbois v. Marc-André Bérubé, SNC‑Lavalin Inc., Alain Blanchette, Aviva Insurance Company of Canada, Royal & Sun Alliance Insurance Company of Canada, Desjardins General Insurance Inc., Intact Insurance Company, La Capitale General Insurance Inc. and Promutuel Lac St‑Pierre - Les Forges, Société mutuelle d’assurance générale
Civil procedure – Improper use of procedure
In a civil liability action for damage caused by pyrite/pyrrhotite in the concrete used to pour concrete foundations and structures for hundreds of immovables in the Trois‑Rivières area between 2003 and 2008, the applicants Lafarge Canada Inc. and Marie De Grosbois were removed from the action by the Court of Appeal to preserve their right to procedural fairness because of their late involvement in the case. The respondents SNC‑Lavalin and Alain Blanchette later instituted six advance recursory actions by way of a call in warranty against the applicants for contributing to the damage by serving as consultants for one of the concrete suppliers. The applicants then filed motions for forced intervention against the respondent Mr. Bérubé, a geologist and an expert witness in the principal action, in four of the six advance recursory actions, as well as an action in sub‑warranty against him. In response, Mr. Bérubé filed motions to dismiss for improper use of procedure and, in the alternative, to separate and suspend the proceedings. The Quebec Superior Court dismissed the motion to dismiss actions. The Court of Appeal allowed the appeal and dismissed the actions.
Robert Frederick Widdifield v. Her Majesty the Queen
Charter of Rights — Right to be tried within reasonable time — Criminal law
Mr. Widdifield was charged with extortion and theft. During his trial, Mr. Widdifield brought an application for a stay of proceedings for reasons of delay, pursuant to s. 11(b) of the Charter. A stay was granted, but was reversed on appeal, and a new trial was ordered. Following the second trial, Mr. Widdifield was convicted on all counts. Mr. Widdifield appealed both his conviction and sentence, but his appeal was dismissed by the Court of Appeal. The reasons for judgment were issued July 22, 2016, and the order dismissing the appeal was entered on August 10, 2016.
While judgment was still reserved, the Supreme Court of Canada released its decisions in R. v. Jordan, 2016 SCC 27, and R. v. Williamson, 2016 SCC 28, on July 8, 2016. On September 8, 2016, Mr. Widdifield applied in writing to reopen his conviction appeal on the basis of the change in the law brought about by Jordan. The Crown applied to quash Mr. Widdifield’s application. On October 25, 2016, the Court of Appeal granted the Crown’s request to quash Mr. Widdifield’s application to reopen his appeal. The Court of Appeal held that it had no jurisdiction to reopen the case because the appeal had been dismissed on its merits, and a formal order had been entered.
Branka Kraljevic v. Her Majesty the Queen
Criminal Law – Appeal – Leave to Appeal
Members of the Paquette family living next door to Branka Kraljevic and her husband started an argument over noise from the Kraljevic’s leaf blower disrupting their party. The argument escalated into a physical altercation on the Kraljevic’s driveway. At some point, Branka’s husband was pinned to the driveway and he called for her to get a knife. She ran into their house and grabbed two knives. She came back outdoors, ran down the driveway, and stabbed Claude Paquette, causing a wound that required three stitches. She testified that she acted in self-defence because Claude got up as she approached and came towards her. Conflicting testimony from Claude and members of his family was that, at the moment of the stabbing, Claude was standing away from the melee and not engaged with Branka’s husband. She was convicted of aggravated assault and assault with a weapon stayed. The Court of Appeal dismissed the appeal.
Her Majesty the Queen v. J.F.R.
Criminal law – Young persons – Sentencing
The respondent, a 17-year-old first time offender, was convicted of second-degree murder, and was sentenced as an adult, to a life sentence with no possibility of parole for seven years. In addition to the life sentence, the respondent received a concurrent five-year sentence as a party to aggravated assault, assault causing bodily harm, and assault. A majority of the Court of Appeal, O’Ferrall J.A. dissenting, allowed the sentence appeal, vacated the adult sentence, and varied the sentence to a global, youth sentence of 4 years in custody followed by 3 years community supervision.
Katherine Lin v. ICBC Vancouver Head Office, Employment Standards Branch Lower Mainland Region, BC, Human Right BC, Ombudsman BC, Amazing Grace Christian Fellowship, Xiaoan Zhou, Guang Rong and Li Hai, Grace Point Church, ProBono Law Ontario, Employment Insurance Commission, Lui Lun
Ms. Lin commenced an action against the named respondents, alleging breaches of the British Columbia Human Rights Code, R.S.B.C. 1996, chapter 210, and the Canadian Charter of Rights and Freedoms. She expressed concerns with how the Insurance Corporation of British Columbia (ICBC) handled a car accident claim in 2008; how Employment Standards (British Columbia) dealt with her complaint in 2009; how the British Columbia Ombudsperson dealt with her complaints to the Ombudsperson about the ICBC and Employment Standards matters. She also alleged harassment in various churches, the failure of the British Columbia Human Rights Tribunal to deal with an unspecified complaint that she made to it, and the fact that she kept waiting but was not helped by Pro Bono Law Ontario. Ms. Lin further complained about the rejection of her claim for Employment Insurance benefits and the dismissal of her appeal by the Social Security Tribunal of Canada. Finally, she expressed concerns about the behaviour of her landlord. The Ontario Superior Court of Justice dismissed the action. The Court of Appeal dismissed the motion for leave to appeal.
Katherine Lin v. Song Lin Zhang, Jing Zhang
- and between -
Katherine Lin v. Sheng Lan Yong
Civil procedure – Landlord and tenant
Ms. Lin, applied to the Landlord and Tenant Board, alleging that the respondents, her landlords or their agents, substantially interfered with her quiet enjoyment of the tenant unit and harassed her. She also alleged that the landlords have collected or retained money illegally. She sought various damages against them. The Board dismissed her applications finding no evidentiary basis to any of the claims. The Board also substantially dismissed her requests for review of its decisions. The Ontario Superior Court of Justice dismissed the appeal of decision by Landlord and Tenant Board. The Court of Appeal dismissed the Motion for leave to appeal.
9119-4654 Québec Inc. v. Jeannine Lague Cardinal
Civil procedure — Commencement of proceedings
The applicant brought an action in damages against the respondent, alleging the respondent’s negligence at the time of a fire in a building owned by her.
A few days before the hearing date for the action, the applicant applied to amend its originating motion and to file new evidence. The respondent contested the application. The Quebec Superior Court granted in part the leave to amend originating motion. The Court of Appeal dismissed the motion for leave to appeal.
Adam Kent Monias v. Her Majesty the Queen
Criminal law – Trial – Trial by judge and jury
Throughout the course of a jury trial for second-degree murder, the trial judge intervened numerous times. The Court of Appeal was of the view, for the most part, that there was a valid purpose for the interventions. In the Court of Appeal’s view, some of the interventions were required because the trial judge sought clarification, or because the questions being posed were compound questions which could be confusing to the witness. Other times, the trial judge intervened to protect the jury from hearing evidence that it was not entitled to hear. After a trial by judge and jury, the applicant was convicted of second degree murder. The Court of Appeal held as follows: on the whole, when the trial judge’s interventions are viewed in their proper context and cumulatively, the Court of Appeal was of the view that they did not deprive the applicant of a fair trial or the appearance thereof. The conviction appeal was dismissed.
Shella Gardezi v. Canadian Union of Public Employees, Local 3495, Positive Living Society of British Columbia, British Columbia (Labour Relations Board)
Charter — Civil procedure — Costs
In April 2013, the applicant, Ms. Gardezi, became an employee of the respondent Positive Living Society of British Columbia (the “Society”), and a member of the respondent Canadian Union of Public Employees, Local 3495 (the “Union”). On June 17, 2014, the Society terminated Ms. Gardezi’s employment. On November 3, 2014, Ms. Gardezi filed a complaint with the respondent Labour Relations Board that the Union had contravened the Labour Relations Code by deciding to settle a grievance concerning her dismissal rather than pursue it to arbitration. The Board dismissed Ms. Gardezi’s complaint on March 18, 2015, and her application for leave and reconsideration on June 18, 2015. Ms. Gardezi then sought judicial review of the Board’s decision, but she was unsuccessful. When she later appealed the review decision, the Society and the Union both brought applications for security for costs of the appeal in the amount of $2,550 and $2,352, respectively. The chambers judge, however, ordered that Ms. Gardezi post security for costs in the amount of $900 for each of the Society and the Union for a total sum of $1,800. She further ordered that the appeal be stayed pending payment of the security. Finding no basis upon which to interfere with the chambers judge’s decision, a unanimous Court of Appeal dismissed Ms. Gardezi’s subsequent application for review.
Rodney Daniel Dick v. Insurance Corporation of British Columbia
Civil procedure – Counterclaim – Negligence
The respondent brought actions against various defendants, claiming conversion, fraud and conspiracy involving the theft, camouflaging and resale of stolen vehicles. An action for conversion was brought against the applicant, and his counterclaim was severed from the main trial. The applicant was found to have “paid conspicuously less than the apparent and insured value of the vehicle”. When it was later stolen from him, he falsely reported the amount he had paid for it. The applicant was held liable in conversion and ordered to pay the respondent the amount of $26,614.31. Both parties brought applications for summary trial of the applicant’s counterclaim. The respondent’s application was dismissed, and the applicant’s was allowed to proceed on the basis of an amended counterclaim alleging the respondent’s negligence in failing to scrutinize the disguised vehicle registrations of the stolen vehicles. The Supreme Court of British Columbia dismissed the counterclaim, finding that the applicant had failed to adduce evidence establishing a standard of care or breach of any duty of care by the respondent. The British Columbia Court of Appeal dismissed the appeal.
Earl Binnersley v. BC SPCA and Farm Industry Review Board
Charter of Rights – Appeals – Mootness
On October 14, 2013, Mr. Binnersley’s dog was struck by a car. On November 6, 2013, Mr. Binnersley took the dog to a veterinarian who diagnosed a dislocated hip joint with attendant lameness and pain. The veterinarian advised Mr. Binnersley that the dog needed pain control and surgery. Mr. Binnersley left the office with the dog. On December 20, 2013, the veterinarian lodged a complaint with the Respondent, British Columbia Society for the Prevention of Cruelty to Animals (“BCSPCA”) because she failed to receive assurances that the dog had received the necessary treatment. On January 22, 2014, a member of the RCMP attended at Mr. Binnersley’s property and observed the dog using three legs to move about. On January 30, 2014, an authorized agent of the BCSPCA sought and obtained a warrant to enter to enter the property to determine whether any action authorized by the Prevention of Cruelty to Animals Act (“PCAA”) should be taken to relieve the dog’s distress and to take such action. The warrant was executed and the dog was taken into BCSPCA custody. A course of veterinary care was commenced.
On February 28, 2014, the BCSPCA conducted a review of the decision to take custody of the dog. It was concluded that the seizure of the dog had taken place in accordance with the PCAA, the dog would not be returned to Mr. Binnersley and the boarding and veterinary expenses were to be paid by Mr. Binnersley. On March 27, 2014, the British Columbia Farm Industry Review Board (“FIRB”) reviewed the BCSPCA’s decision. On April 15, 2014, the FIRB adjudicator delivered reasons allowing a minor reduction in Mr. Binnersley’s financial penalty, but otherwise dismissed his appeal. Between April 16, 2014 and June 15, 2014, the BCSPCA transferred ownership of the dog to a new owner. On June 16, 2014, Mr. Binnersley filed a petition for judicial review with the B.C. Supreme Court seeking a return of the dog, a review of the FIRB cost order and damages. The petition was heard on September 25, 2014 and at the outset of the hearing, the BCSPCA waived its claim to the dog’s veterinary and boarding expenses. The court dismissed Mr. Binnersley’s petition on September 26, 2014. His subsequent appeal was found to be moot and thus dismissed.
Hamed Mohammad Shafia v. Her Majesty the Queen
Criminal law – Evidence – Fresh evidence – Appeals
Hamed Shafia and his parents, Shafia and Yahya Mohammed, each were convicted of four counts of first degree murder for the deaths of three of his sisters and his father’s first wife. The Crown argued at trial that the deaths were honour killings. Hamed and his parents acknowledged before trial that Hamed was 18 years old at the time of the offences. On appeal, Hamed applied to adduce fresh evidence to prove that he was 17 years old at the time of the offences therefore the Ontario Superior Court of Justice was without jurisdiction under the Youth Criminal Justice Act, S.C. 2002, c. 1. The Court of Appeal refused to admit the fresh evidence.
James Richard Melrose v. Her Majesty the Queen
Charter of Rights and Freedoms – Remedy – Costs
Mr. Melrose was issued a ticket for speeding contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He filed a notice of dispute. Before trial, he made several unsuccessful attempts to obtain disclosure. On July 11, 2011, trial was adjourned to allow Mr. Melrose to seek a stay of proceedings on the basis of non-disclosure or for unreasonable delay. A stay was denied. On January 3, 2012, the officer who issued the ticket responded to Mr. Melrose’s disclosure request by ordinary mail but Mr. Melrose did not receive the materials. On January 18, 2012, Makhdoom J. ordered disclosure and adjourned trial proceedings. On January 20, 2012, the officer disclosed a summary of her qualifications and experience. Mr. Melrose made a request for further disclosure under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165. On or about April 9, 2012, the officer sent a copy of her curriculum vitae and her original disclosure letter dated January 3, 2012. The Court of Appeal dismissed the appeal.
Thomas Winmill v. Canada (Minister of Justice)
The applicant was convicted of first degree murder. The applicant applied under s. 696.1 of the Criminal Code, R.S.C. 1985, c. C-46 for Ministerial relief against his conviction for first degree murder. The applicant’s son swore an affidavit in which he confessed to the murder. The Minister dismissed the applicant’s application. The applicant’s application for judicial review was dismissed. The Federal Court of Appeal dismissed the appeal.
TNR (TNM) v. W.P.R.
Family law – Custody – Access
The mother and father were married in 2001 and separated in 2008 when their two daughters were three and five years of age. Two days after the separation, the mother obtained an ex parte order precluding any access by the father on the grounds that he had emotionally abused the family. These allegations later escalated into accusations of physical and sexual abuse of the children in several affidavits filed between 2008 and 2014. Eight Child and Family Services Investigations and numerous complaints to the police and RCMP ensued, none of which yielded any evidence to substantiate the mother’s concerns. Nonetheless, the father’s access rights were first terminated, then later restored, but on a supervised basis. The experts retained to investigate concluded that the sexual abuse allegations were unfounded and that the children had been “coached” by their mother. The father was then awarded equal shared parenting. A month later, the mother’s access became supervised. Since 2010, the father has had primary care of the two girls by court order. The mother maintained that she had only acted on the complaints raised by the children and that she had not coached them. The case management judge made an order suspending the mother’s access, permitting her to apply for access after acknowledging that she had manipulated the children into making false accusations.
Charbel El-Helou v. Courts Administration Service, Laurent Francoeur, Francine Côté, Eric Cloutier, David Power and Éric Delage
Public service – Administrative law – Legislation
The applicant Mr. El-Helou and individual respondents were, at all material times, employees of the Courts Administration Service (CAS). In 2009, Mr. El-Helou made reprisal complaints to the Public Sector Integrity Commissioner. He alleged to have been subject to reprisals by the individual respondents after disclosing what he believed to be acts of wrongdoing on the part of certain employees.
Following the first investigation into the complaints, the Commissioner dismissed complaints #1 and #2 and referred complaint #3 to the Tribunal. The Federal Court set aside the dismissal of complaints #1 and #2 on judicial review and remitted the matter back for additional investigation. The second investigation included complaint #3. The second investigator found that all complaints, other that complaint #3, were either unfounded or explained by other factors. The investigator further found that based on the available information, the Commissioner should not have placed complaint #3 before the Tribunal.
As a result of this second investigation, the Commissioner dismissed all complaints, other than complaint #3. The Commissioner recognized that insofar as that complaint was concerned he was functus officio, given that the Tribunal was seized of it. However, in light of the statutory requirement to take the position that is in the public interest in proceedings before the Tribunal and the new information, the Commissioner no longer intended to support Mr. El-Helou.
Mr. El-Helou applied for judicial review in the Federal Court. He challenged both the Commissioner’s decision to withdraw support in relation to complaint #3, and the dismissal of his other complaints. The Federal Court of Appeal dismissed the appeal.
Ahmed Mohamed v. Her Majesty the Queen
Criminal law – Evidence – Identification
In the early morning hours of January 1, 2011, two men had an altercation outside a nightclub, The altercation led to a chase and a fatal shooting a few blocks away. The men passed nearby security cameras. Various eyewitness saw different parts of the events. No witness knew the shooter. No forensic evidence tied Mr. Mohamed to the shooting. An expert could neither identify nor exclude Mr. Mohamed based on the security camera video recordings. A friend of the victim, Mr. Emam, identified Mr. Mohamed at trial as the shooter. He had seen the shooter’s face briefly from a distance outside the nightclub. He described the shooter that night in a 911 call and to the police. Two days after the shooting, he described the shooter to a group of friends of the victim. Another man thought he knew the identity of the shooter. He showed Mr. Emam Facebook photos and pointed to a man in the photos. Mr. Emam recognized the man in the photos as the shooter. The friend identified the man in the photos as Mr. Mohamed. The Court of Appeal dismissed the appeal.
Her Majesty the Queen v. Charlie Manasseri
Criminal law — Appeals — Powers of appellate court
The victim and some friends went to a nightclub. At the bar, the respondent, Mr. Manasseri, smashed the victim’s head repeatedly against the steel surface of the bar. The victim was escorted out of the bar. He was intoxicated, dazed and seemed as if he were in shock. One of his friends left with him. Outside the bar, another patron, Mr. Kenny, walked up to the victim and his friend, punched the victim’s friend and then the victim, who fell to the ground unconscious. The victim was taken to hospital where doctors noted that he had fixed, dilated and non-reactive pupils and uncontrolled brain swelling. The victim never regained consciousness and died the next day. Mr. Manasseri was charged with second degree murder. Initially, Mr. Kenny was charged with assault and assault causing bodily harm. Shortly before Mr. Kenny’s trial was to begin, the Crown upgraded the charge to manslaughter and joined him with Mr. Manasseri. Both accused filed applications for severance, which the trial judge dismissed. Ultimately, the jury found Mr. Manasseri guilty of second degree murder and Mr. Kenny guilty of two counts of assault causing bodily harm. Both accused appealed. Mr. Manasseri sought an acquittal or a new trial on the basis of fresh evidence about what caused the victim’s death. Mr. Kenny sought a stay of proceedings because he was not tried within a reasonable time. Both accused argued that they should not have been tried together. The Court of Appeal allowed the appeal, ordered a new trial for Mr. Manasseri and entered a stay of proceedings for Mr. Kenny. The Crown’s application for leave to appeal to this Court concerns Mr. Manasseri only.
Kemchand Shiwprashad v. Her Majesty the Queen
Charter of Rights and Freedoms – Right to liberty – Right to security of the person
Following a conviction for a serious criminal offence, Mr. Shiwprashad, a permanent resident in Canada, was subject to a removal order. The removal order was stayed on appeal for four years. The stay was conditional upon not committing a criminal offence for which a sentence of more than six months would be imposed or which would be punishable by at least ten years imprisonment. On March 8, 2013, Mr. Shiwprashad pleaded guilty to one count of robbery. He was sentenced to nine months’ imprisonment. On June 4, 2013, the stay order was cancelled and his appeal was terminated. On February 11, 2014, Mr. Shiwprashad was deported.
Danilo Maala Almacén v. Her Majesty the Queen
Civil procedure – Collateral attack – Abuse of process
The Applicant, Mr. Almacén’s commenced an action in the Federal Court following the denial of his application to remain in Canada on Humanitarian and Compassionate (“H&C”) grounds pursuant to s. 25 of the Immigration and Refugee Protection Act. The claim alleged various causes of action including misfeasance in public office, negligence, and breaches of the Canadian Charter of Rights and Freedoms.
Mr. Almacén also filed an application for leave and judicial review of the H&C decision. The application for leave was denied by Shore J. and a subsequent motion for reconsideration was dismissed. The test before Shore J. was whether there were fairly arguable issues in relation to the H&C decision. Since leave was denied and the motion for reconsideration dismissed, the conclusion is that there were no fairly arguable issues.
Mr. Almacén’s Amended Statement of Claim was struck by an Order of the Prothonotary without leave to amend on the basis that, based on the facts as pled, the Statement of Claim did not disclose a reasonable cause of action. In the alternative, the Prothonotary said he would have struck the Statement of Claim as an abuse of process since, in his view, this was an attempt to re-litigate the decision of Shore J. to dismiss the application for leave in relation to the H&C decision. Mr. Almacén then brought a motion before the Federal Court to set aside the Prothonotary’s order. Russell J. dismissed the motion on the basis that it was an abuse of process as it was an attempt to re-litigate the reasonableness of the H&C decision, and the court had already dealt with the reasonableness of that decision. Russell J. also found that he would dismiss the motion on the basis that, based on the facts as alleged in the Statement of Claim, no reasonable cause of action was disclosed. An appeal of the decision was dismissed.
Gordon Teti v. Attorney General of Canada
Administrative law — Judicial review — Application for leave to appeal
Mr. Teti brought grievances against his employer, the federal government, under the Public Service Labour Relations Act, S.C. 2003, c. 22, when his term position was not renewed. The adjudicator dismissed the grievances.
On judicial review, the Federal Court dismissed the application for judicial review. The Federal Court of Appeal dismissed the appeal. Mr. Teti’s motion for reconsideration was also dismissed by the Federal Court of Appeal.
Jens Peter Elmgreen v. J. William Evans
Civil procedure – Motion to strike statement of claim
Mr. Elmgreen brought an action against his former lawyer for breach of fiduciary duty and negligence in relation to legal services provided to him following the breakdown of his marriage. After a thirteen day trial, the action was dismissed in 2011. Mullins J. found that Mr. Elmgreen failed to prove Mr. Evans was negligent, failed to prove a breach of fiduciary duty, failed to prove that Mr. Evans’ actions caused foreseeable damages and that his claims were statute barred. Her decision was upheld on appeal. Mr. Elmgreen’s subsequent application for leave to appeal to this Court (File no. 35643) was dismissed on February 13, 2014. The same year, he issued the current action against Mr. Evans seeking damages for various alleged breaches of the Criminal Code in relation to the same matters that he raised in his previous action. The Respondent brought a motion to strike out the statement of claim on the grounds that it disclosed no reasonable cause of action and was frivolous, vexatious and/or an abuse of process. In the alternative to striking out the action, Mr. Elmgreen was required to post security for costs. The Court of Appeal dismissed the appeal.