36211 Joudaane v. The Queen (Charter of Rights – Criminal law – Trial within reasonable time)

On appeal from the judgment of the Court of Appeal for Quebec pronounced October 10, 2014. The applicant was found guilty of conspiracy, breaking and entering and possession of stolen property. He worked for an insurance company. He gave an acquaintance a key that allowed her to enter the company’s offices and steal confidential information that would later be used to commit fraud. More than 7,000 client files were stolen, as well as 55 broker files and some computer equipment. At trial, the applicant raised a defence of duress, which the trial judge rejected. More than six years had passed between his appearance and the commencement of his trial. The judge dismissed the motion on the basis that even though the delay was unreasonable, The applicant’s inaction throughout the proceedings demonstrated that he was in no hurry to stand trial. The judge also found that the applicant had not suffered any harm because of the delay. The Court of Appeal dismissed the appeal.

36189 Fedossenko v. The Queen (Charter of Rights – Search and seizure – Production order)

On appeal from the judgment of the Court of Appeal for Alberta pronounced September 25, 2014. The applicant was acquitted of unlawfully operating a motor vehicle while impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code and operating a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b). The Crown appealed the acquittal. The Crown alleged that the trial judge erred in law in her interpretation of the standard required by s. 487.012(3) for a valid production order. It was argued that the trial judge erred in, first, interpreting a statute outside its plain and ordinary meaning, and second, essentially providing the constitutional remedy of “reading down” in the absence of the challenge to the constitutionality of the legislation. The summary conviction court dismissed the appeal, however the Court of Appeal allowed the appeal and ordered a new trial.

36207 Oton v. The Queen (Criminal law – Sufficiency of charge to the jury)

On appeal from the judgment of the Court of Appeal for Ontario pronounced February 19, 2014. The applicant was convicted following a jury trial of fraud over $5000. He operated a business known as Oton’s Consulting and Bookkeeping Service. The indictment alleged that the applicant, between January 1, 2004 and June 27, 2008, defrauded the federal government through filing false tax returns and fabricating charitable donation receipts which were claimed as deductions on tax returns prepared on behalf of his clients. The applicant appealed his conviction, attacking the charge to the jury. The appeal was denied.

36157 ELS Marketing Inc., et al. v. WestJet (Courts – Discretion)

On appeal from the judgment of the Court of Appeal for Alberta pronounced November 5, 2014. WestJet contracted with ELS to administer the shipping of cargo on its aircrafts from 1996 to September 30, 2009. In April 2009, WestJet purported to extend the agreement to September 30, 2010. However, on September 1, 2009, WestJet communicated its decision to terminate the agreement as of December 31, 2009. WestJet sued ELS for damages for breach of contract. It alleged, inter alia, that ELS was in breach of contract by not remitting monies owing in a timely fashion and by not fulfilling its financial record keeping and reporting responsibilities. ELS argued that WestJet was in breach of contract when it terminated the Agreement as of December 31, 2009, because it had earlier extended the Agreement to September 30, 2010. It also said that the termination gave WestJet a monopoly over the air cargo market in Canada. In its counterclaim, it sought a declaration that WestJet had violated the Competition Act, R.S.C. 1985, c. 34. Case Management was ordered. When ELS did not comply with an order that it seek summary trial and judgment on the summary trial, the Case Management Judge directed that an application for summary trial and the judgment in the “main claim” proceed together on May 1, 2013. WestJet then applied for summary trial. Jones J. granted judgment in favour of WestJet and dismissed ELS’s counterclaim based on breach of contract and equitable set-off without prejudice to ELS’s ability to pursue its counterclaim based on the Competition Act in a separate proceeding. The Court of Appeal allowed the appeal in part, setting aside the dismissal of the counterclaim, and sending the whole appeal to trial. It dismissed an application for leave to reargue a portion of the appeal.

36140 Alberta Securities Commission v. Walton et al(Administrative law – Appeals – Standard of review)

On appeal from the judgment of the Court of Appeal for Alberta pronounced December 19, 2014. The Alberta Securities Commission found the respondents (and others) contravened Alberta securities law and found them liable for breaches including insider trading and other various types of improper conduct under the Securities Act, R.S.A. 2000, c. S-4, with respect to the shares of Eveready Inc. The Commission imposed sanctions. The respondents appealed the findings as well as the sanctions. At the Court of Appeal, all of the appeals were allowed except for the appeal by Mr. Holtby which was allowed in part and the appeal of Mr. Kowalchuk was dismissed. The appeals of Mr. Holtby and Mr. Kowalchuk from the sanction decision were also allowed and remitted back to the Commission to be reconsidered.

36172 Tahmourpour v. Canadian Human Rights Commission, et al. (Civil procedure – Contempt – Crown immunity)

On appeal from the judgment of the Federal Court of Appeal pronounced September 17, 2014. In 1999, the applicant was dismissed from the Royal Canadian Mounted Police’s cadet training program in Regina, Saskatchewan, after being subjected to racial jokes and verbal abuse. He made a complaint to the Canadian Human Rights Tribunal that he had been unfairly terminated for reasons related to his race, ethnicity and religion. Eventually, the Tribunal found that the applicant had been terminated for discriminatory reasons and made several remedial orders including a order to allow the applicant an opportunity to re-enroll in the RCMP’s cadet program. Negotiations ensued between the parties as to how the order was to be implemented but the negotiations stalled and the applicant filed a contempt motion in May, 2011. The parties subsequently resolved most outstanding issues from the order and the contempt motion was discontinued. In early 2012, the applicant signed a Cadet Training Program Agreement and a letter which offered re-enrolment in training on certain terms. He was asked to obtain a medical profile, which included a psychological assessment. The applicant objected to this but agreed to submit to a medical and a psychological assessment. The first psychologist was unable to reach a conclusion on his suitability as a general duty constable. He was interviewed by another psychologist who concluded that he was unsuitable. The RCMP advised the applicant that his continued re-enrolment as a cadet was being terminated as a result of the assessments. He brought a motion to compel the Commissioner and an inspector to appear before a judge and show cause as to why they should not be found in contempt of court for failing to comply with the order. On June 10, 2013 the Federal Court dimissed the Applicant’s show cause motion. On November 8, 2013 the Federal Court dismissed the appeal. On September 17, 2014 the Federal Court of Appeal dismissed the appeal.

36234 Minister of Justice, et al. v. Alberta Union of Provincial Employees, et al. (Charter of Rights – Freedom of Association – Labour relations – Arbitration – Jurisdiction)

On appeal from the judgment of the Court of Appeal for Alberta pronounced January 30, 2014. The Public Service Employee Relations Act, R.S.A. 2000, c. P-43 (“PSERA”) establishes the Alberta Union of Provincial Employees (“AUPE”) as the exclusive bargaining agent for the bargaining unit consisting of employees of the Crown in right of Alberta. The AUPE and the Government of Alberta (“Alberta”) are parties to a collective agreement but it does not apply to certain employees excluded by s. 12 of the PSERA. The AUPE filed a policy grievance in relation to the excluded employees, alleging that Alberta’s exclusion of employees from the bargaining unit and failure to deduct and remit union dues violated several articles of the collective agreement, as well as the employees’ freedom of association under s. 2(d) of the Charter. Alternatively, AUPE alleged that s. 12(1) of the PSERA violated s. 2(d) of the Charter. AUPE further claimed that the exclusion of employees from the bargaining unit undermined and interfered with AUPE’s fundamental right of representation, and violated the excluded employees’ fundamental rights of representation and to bargain collectively. The AUPE sought similar relief in its grievance and in the filed Notice of Constitutional Question. In particular, it asked the Board for declarations that Alberta or, alternatively, s. 12(1) of the PSERA violated s. 2(d) of the Charter; s. 12(1) was constitutionally invalid and of no force or effect; and that the exclusions of employees from the bargaining unit as a result of s. 12(1) are null and void. The AUPE also sought a collateral declaration that the excluded employees are covered by the collective agreement and that Alberta must deduct and remit union dues to AUPE in relation to the excluded employees. The Board concluded that it had jurisdiction to deal with the constitutional issues, as the collective agreement gave it jurisdiction over the dispute. The Board accepted that the issue about Alberta’s obligation to collect and remit union dues was sufficient to constitute a grievance under the collective agreement. The Board also held that s. 12(1) of the PSERA did not breach the Charter and it dismissed AUPE’s grievance on the basis that the excluded employees were not members of AUPE’s bargaining unit and therefore, Alberta did not breach the collective agreement by not deducting and remitting union dues to AUPE. On judicial review, the Board’s decision was upheld on the basis that the Board reasonably interpreted s. 12(1) of the PSERA and that it correctly found that s. 12(1) did not violate s. 2(d) of the Charter. An appeal to the Court of Appeal was allowed and the arbitration award was quashed. The court held that the Board did not have jurisdiction to deal with the dispute or to issue a declaration of constitutional invalidity. Alberta then sought leave to reargue the appeal before the Court of Appeal. The Court of Appeal dismissed the application.

36170 R.M. v. The Queen (Criminal law – Sexual assault and sexual exploitation – Evidence)

On appeal from the judgment of the Court of Appeal for Ontario pronounced November 7, 2014. The applicant was convicted of sexual assault and sexual exploitation in respect of the complainant, his foster child. The applicant testified at trial and denied ever having sexual contact with the complainant. The complainant also testified at trial. On appeal, the applicant argued, among other things, that the trial judge reversed the burden of proof when assessing his evidence. The Court of Appeal dismissed the appeal.

36186 Peekeekoot v. The Queen (Criminal law – Dangerous and long-term offenders – Protection of the public) 

On appeal from the judgment of the Court of Appeal for Saskatchewan pronounced September 23, 2014. The applicant was convicted of assault with a weapon after attacking two individuals with a knife. The Crown commenced dangerous offender proceedings. The applicant, aged 34 at the time, was a Cree man who grew up in difficult circumstances. His parents abused alcohol and drugs, resulting in his placement in foster care, where he suffered physical and sexual abuse. He began to use drugs and alcohol. The applicant had a longstanding criminal history, including more than 40 prior convictions, half of which were for violent offences. He was incarcerated for the majority of his adult life. The applicant was diagnosed with an antisocial personality disorder with psychopathic tendencies and assessed as a very high risk to re-offend violently. The sentencing judge found that The applicant fit the criteria for a dangerous offender designation and concluded there was no reasonable possibility of managing his risk in the community. He was sentenced to an indeterminate period of imprisonment. The Court of Appeal dismissed the appeal.

36058 Canad Corporation of Manitoba Ltd., Canad Inns-Club Regent Casino Hotel Ltd. v. Lake Louise Limited Partnership; and between Canad Corporation of Manitoba Ltd., Canad Inns-Brandon Ltd. v. Lake Louise Limited Partnership (Contracts – Commercial contract – Interpretation – Standard of review)

On appeal from the judgment of the Court of Appeal for Manitoba pronounced June 13, 2014. Beginning in 1999, Canad Corporation of Manitoba Ltd. (“Canad”) and Lake Louise Limited Partnership (“Lake Louise”) entered into various agreements to construct, manage and share the profits of two hotels with video lottery terminals (“VLTs”) situated in Winnipeg and Brandon, Manitoba. Canad had a 51 per cent interest in each hotel, while Lake Louise had a 49 per cent interest in each. Two agreements governed each hotel. The co-ownership agreement (“COA”), related to the respective rights and liabilities of each party. Pursuant to the hotel management agreement (“HMA”) Canad was paid a management fee of either two or three per cent of the “Gross Revenues” of the hotels. “Gross Revenues” was a defined term and included, in part, “all revenues and receipts of every kind”. The agreements also stated that all calculations were to be made in accordance with generally accepted accounting principles (“GAAP”) “except if otherwise expressly provided herein.” The joint venture operated without issue until a dispute arose in 2007. Canad changed the calculation of its management fee pertaining to revenues from VLTs without notice to Lake Louise. As a result, Lake Louise received substantially less revenue from the two hotels than in previous years. For all fiscal years up to and including 2006, Canad had calculated its management fee with respect to the VLTs by including only the 20 per cent commission it received from the Manitoba Lottery Corporation as part of Gross Revenues. In 2007, Canad began including as part of Gross Revenues, the coin-in or actual the amounts paid by the VLT players. Canad then retroactively applied its new methodology to all prior years and claimed all of those increased amounts in the 2007 fiscal year. Lake Louise commenced the actions, seeking, amongst other things, a declaration that Gross Revenues with respect to VLT revenues was to be calculated on the basis of the 20 per cent MLC commission, and not the coin-in. On July 5, 2013 the Court of Queen’s Bench of Manitoba gave an order permitting the applicant to calculate management fees based in part on the amount of “coin-in” generated by VLT’s operated in parties’s hotels but not retroactively. On June 13, 2014 the Court of Appeal of Manitoba allowed the Respondent’s appeal.

36177 Immunovaccine Technologies Inc. v. The Queen(Income tax – Assessment) 

On appeal from the judgment of the Federal Court of Appeal. The applicant, Immunovaccine Technologies Inc., is a research and development company that develops vaccines against infectious diseases. The Atlantic Canada Opportunities Agency (“ACOA”), is an agency of the Government of Canada established to support the economic development in Atlantic Canada. ACOA provided Immunovaccine with $3,786,474 in funding, spread over four years (2005 through 2008). In March, 2008, the Minister of National Revenue determined that those amounts constituted “government assistance” pursuant to s. 152(1)(b) of the Income Tax Act, R.S.C. 195, c. 1 (5th Supp.) (“ITA”). As a result, for each of those taxation years, the Minister denied Immunovaccine’s scientific research and experimental development (“SRED”) claims and its entitlement to refundable investment tax credits (“RITCs”) pursuant to subsection 127.1(1). The applicant appealed the decision of the Minister and it was dismissed by the Tax Court of Canada. On September 11, 2014 the Federal Court of Appeal dismissed the Applicant’s appeal.

36143 Scottish & York Insurance Co. Limited v. Drover(Automobile insurance – Meaning of “principally dependent” parent)

On appeal from the judgment of the Supreme Court of Newfoundland. The respondents, Clement and Eileen Drover, had accepted their son’s offer of an all-expense-paid vacation to Florida from Newfoundland in return for their looking after his four children as needed. The vehicle rented and driven by their son, Wade Drover, was rear-ended as the family drove from Orlando airport to their rental vacation home. Injured parties included the respondents. The Drovers sued for coverage under the S.E.F. 44 Endorsement and Supplement of their son’s automobile insurance policy on the grounds that, as a result of their agreement with him, they were “principally dependent” upon their son while in Florida, as required by the policy Endorsement. The insurer, Scottish & York, applied for a summary trial and dismissal of the claim, arguing the parents were neither residing with their son nor principally dependent upon him. The Newfoundland and Labrador Supreme Court dismissed the insurer’s application for summary judgment with costs on a party and party basis. The majority of the Court of Appeal (White J.A., dissenting) dismissed the insurer’s appeal and the cross-appeal on costs.

36127 Peter Kaynes v. BP, PLC (Private international law – Forum non conveniens – Comity)

On appeal from the judgment of the Court of Appeal for Ontario. The applicant, Mr. Kaynes, brought a proposed class action for secondary market misrepresentation against the respondent, BP, alleging that it made various misrepresentations in documents it sent to its shareholders. The proposed class consisted of all residents of Canada who acquired BP securities between May 9, 2007 and May 28, 2010, regardless of whether those securities were purchased on the Toronto Stock Exchange, the New York Stock Exchange or European exchanges, and who held some or all of them through the end of the class period. However, the proposed class excluded those who acquired their shares on the New York Stock Exchange and who did not opt out of a parallel proceeding underway in the United States based on the same alleged misrepresentation. Before the leave and certification motions were heard, BP moved for a stay of proceedings on the basis that, with the exception of the claims made by those who purchased securities on the Toronto Stock Exchange, Ontario did not have jurisdiction over the dispute. Alternatively, BP claimed that if Ontario did have jurisdiction simpliciter, it should decline to exercise that jurisdiction on grounds of forum non conveniens. The motions judge dismissed BP’s motion. The Court of Appeal allowed the appeal and stayed the proceedings. In its view, while the motions judge was right to find that Ontario had jurisdiction, she erred by failing to decline jurisdiction. In particular, the Court concluded that the motions judge failed to take into account the principle of comity in assessing the effect of exercising Ontario jurisdiction, and erred in law with respect to the related issue of avoiding a multiplicity of proceedings.