Supreme Court of Canada Bulletin, March 24, 2022 – Applications for leave to appeal decided
39774 Procureur général du Québec c. Association canadienne des télécommunications sans fil QC Constitutional law — Division of powers — Provincial regulation of online gambling
Yves Des Groseillers, BMTC Group Inc. v. Agence du revenu du Québec
Taxation – Income tax – Assessment
The applicants, Yves Des Groseillers and BMTC Group Inc., appealed assessments made by the respondent, the Agence du revenu du Québec (“ARQ”). In the course of tax audits, the ARQ added amounts to Mr. Des Groseillers’s taxable income as additional employment income. Those amounts represented the total value of the stock options donated by Mr. Des Groseillers to registered charities, for which he had claimed tax credits. The ARQ therefore added the amounts to BMTC’s payroll as well.
The Court of Québec allowed Mr. Des Groseillers’s application and vacated the notices of assessment. It allowed BMTC’s application in part and referred the notices of assessment to the Minister for reconsideration and reassessment. In the court’s view, although the transactions were subject to the special rules on the issuance of securities to employees, it would find that Mr. Des Groseillers had not received any benefit, because the evidence showed that he had not received any consideration for the donation and that he had not paid anything to acquire the options. The ARQ could not rely on the presumption set out in another division of the statute to the effect that the disposition of property is deemed to be made at its fair market value, because the special rules form a complete code. The Court of Appeal allowed the ARQ’s appeal, set aside the Court of Québec’s judgment and rendered the decision that ought to have been rendered, that is, it dismissed the appeals brought by Mr. Des Groseillers and BMTC from the notices of assessment. It held that the special rules do not exclude the application of the presumption.
Canadian Imperial Bank of Commerce v. Her Majesty the Queen
Taxation — Goods and services tax — Loyalty points
The Canadian Imperial Bank of Commerce (“CIBC”) made substantial payments to Aeroplan Limited Partnership (“Aeroplan”) under an agreement related to Aeroplan credit cards that were issued by CIBC (“Agreement”). CIBC paid GST to Aeroplan based on the amount CIBC had paid Aeroplan under the Agreement, but later sought a rebate based on its view that the supplies Aeroplan was providing were financial services (gift certificates), which are exempt from GST. The Minister denied the rebate.
The Tax Court Judge dismissed the appeal from the Minister’s denial of a GST rebate, finding that the Agreement showed that the predominant supply provided by Aeroplan to CIBC was promotional and marketing services, not the loyalty points provided to the holders of the credit cards. The Court of Appeal dismissed the appeal, finding that the Tax Court Judge had not erred in assessing the nature of the predominant supply.
Brody Florence, Cole Florence and Taylor Florence, by their Litigation Guardian, Dana Florence v. Susan Benzaquen
Torts — Duty of care — Judgments and orders
The applicants brought an action in negligence against the respondent physician who had treated Ms. Florence by prescribing for her a fertility drug. Ms. Florence conceived and gave birth prematurely to the three infant plaintiffs, who all suffer disabilities as a result of their premature birth. The infant plaintiffs made claims against the respondent in their own right for acts of alleged negligence that occurred before their conception. The respondent brought a motion to strike the infants’ claims on the ground that they were not viable at law. The motion was granted. This decision was upheld by a majority of the Court of Appeal.
Centre for Health Science and Law (CHSL) v. Attorney General of Canada
Civil procedure — Intervention — Federal Court of Appeal
This case involves an application for judicial review filed by Safe Food Matters Inc. of a decision of the Pest Management Regulatory Agency (“PMRA”), acting on behalf of the Minister of Health, administering the Pest Control Products Act, SC 2002, c 28. The PMRA decided not to convene a review panel in response to a Notice of Objection in relation to the continued registration of a pesticide, glyphosate, following the PMRA’s issuance of a final re‑evaluation decision. The PMRA concluded that the Notice of Objection did not raise an issue of scientific doubt concerning its evaluations and that a review panel would not assist it. The Federal Court determined that the PMRA decision not to establish a review panel was reasonable, and Safe Food appealed. The applicant, the Centre for Health Science and Law (“CHSL”), unsuccessfully sought to intervene in that proceeding. CHSL’s motion was dismissed on the basis of it seeking to both adduce fresh evidence and raise new legal issues on appeal, including alleged Charter infringements. The court considered CHSL’s prospective participation to be beyond the scope of a permissible intervention, and concluded that it would not be of assistance to it.
Joan Wakeling, Barbara Evison v. Desjardins General Insurance Group Inc., Nadia Lucia Costantino
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Licence Appeal Tribunal
Constitutional law — Courts — Jurisdiction
When the respondent insurer denied her accident benefits relating to a car accident, Ms. Evison filed an appeal with the Licence and Appeal Tribunal. When Ms. Evison attended a case teleconference, Ms. Wakeling, her long‑time friend and neighbour, used vacation time from her employment with the respondent to attend it as an aide and witness for Ms. Evison. When the respondent’s management learned of Ms. Wakeling’s participation in the conference they fired her. The applicants brought an action in the Ontario Superior Court of Justice for breach of privacy and punitive damages. They argued that the respondent and its legal counsel, Ms. Constantino, had invaded their privacy by revealing to management that Ms. Wakeling had attended the teleconference. Ms. Wakeling alone brought separate claims against the respondent for wrongful dismissal and aggravated and punitive damages. Those claims are ongoing.
The applicants filed a motion to amend their Statement of Claim by adding additional defendants and making additional claims of breach of privacy, breach of confidence and breach of the Human Rights Code, R.S.O. 1990, c. H.19. The respondents brought motions to strike the claims and opposed the motions to add new claims and new defendants. The Superior Court of Justice struck the applicants’ claims for breach of privacy and punitive damages and dismissed the entire action against Ms. Constantino. The court denied the applicants leave to amend their Statement of Claim. The Ontario Court of Appeal dismissed the applicants’ appeal. In rejecting Ms. Evison’s claims, the court also noted the bar to claims for bad faith treatment of her accident benefit, pursuant to s. 280 of the Insurance Act of Ontario.
Darren Vrbanek v. David Zerbin, Barbara Zerbin, Modern Granite & Marble Inc., Daniel Tran
Commercial law — Corporations — Personal liability of directors and officers
DN Developments Ltd. was contracted to manage the construction of a luxury home for David and Barbara Zerbin on a “cost‑plus” basis. Its services were provided through Darren Vrbanek, its sole shareholder, director and principal, supported by DN’s employees, including Mr. Vrbanek’s sons. The Zerbins also engaged DN to manage the construction of a more modest home on a nearby lot. Modern Granite was a supplier on both projects. During construction, its principal, Daniel Tran, told Ms. Zerbin that Mr. Vrbanek had asked him to inflate his quote and to pay a $35,000 kickback. The Zerbins questioned DN’s most recent invoice and asked for a reconciliation of the previous three months’ invoices. When the reconciliation had not been received ten days later, the Zerbins terminated DN’s services by written notice. They hand‑delivered notices of the termination to the trades and suppliers working on site. When the notices were delivered, they learned that some of the trades and suppliers had not been paid even though DN had been given the money to make those payments.
The Zerbins launched an action against DN and Mr. Vrbanek alleging that they had been intentionally overcharged and that the contracts had been performed dishonestly. DN and Mr. Vrbanek counterclaimed for improper termination of the contract and defamation. They also launched their own action, alleging that the Zerbins, Mr. Tran and Modern Granite had induced breach of contract by others, had interfered with DN’s contractual and economic relations, and had conspired to economically injure DN and Mr. Vrbanek.
The Zerbins were awarded judgment at trial; the counterclaim and the action by DN and Mr. Vrbanek were dismissed. The appeals were dismissed.
Theoktiti Dimakis by her litigation guardian, Konstantine Dimakis, Theoktisti Dimakis by her litigation guardian, Konstantine Dimakis, Ekaterini Dimakis by her litigation guardian, Konstantine Dimakis, Eleftherios Dimakis by his litigation guardian, Konstantine Dimakis, Konstantine Dimakis v. Cathleen Vitucci, William Vitucci, Kristi Collins, Lancaster, Brooks & Welch, LLP
Civil procedure — Summary judgment — Negligence
One of the five applicants, Theoktiti Dimakis, suffered a health crisis during an in‑person examination for discovery that was court ordered in a previous action brought by the respondents, who were the plaintiffs and their representation in that previous action. Following this health crisis, the five applicants, Ms. Dimakis and family members, brought an action against the respondents seeking damages for, amongst other, mental and emotional distress and breach of rights under, amongst other, the Canadian Charter of Rights and Freedoms. The respondents successfully brought a motion for summary judgment before the Ontario Superior Court of Justice, dismissing the applicants’ action in damages. The Court of Appeal dismissed the applicants’ appeal, affirming the decision of the motion judge.
Paul-Éric Béliveau v. Her Majesty the Queen
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André Diotte, Diane Bélair, Carole-Anne Girard
Criminal law — Fingerprinting
The applicant, Paul‑Éric Béliveau, and two other individuals (“petitioners”) received a summons or appearance notice on hybrid charges for which the prosecution elected to proceed by way of summary conviction. The summonses or notices directed them to report to the police station on a date prior to their appearance so they could be subjected to the identification process provided for in the Identification of Criminals Act, R.S.C. 1985, c. I‑1. Before their appearance, the petitioners filed proceedings seeking a writ of certiorari to quash the portion of the notices and summonses directing them to submit to identification measures. They argued that, since R. v. Dudley, 2009 SCC 58, the Identification of Criminals Act has not applied to hybrid offences that are prosecuted summarily.
The Superior Court granted the applications for a writ of certiorari and quashed the portion of the appearance notices and summonses confirmed by justices of the peace that required the petitioners to submit to identification and bertillonage measures. The Court of Appeal allowed the Crown’s appeal, set aside the Superior Court’s judgment of March 8, 2019 and dismissed the applications for writs of certiorari. It found that the application judge had erred in law in considering herself bound by Dudley based on the principle of stare decisis: the nature of the dispute and the specific remarks of the Supreme Court judges to the effect that the Identification of Criminals Act was not in issue led to the conclusion that stare decisis could not be invoked. Upon completing its purposive analysis of the relevant provisions, the Court of Appeal concluded that a hybrid offence does not lose its indictable character because prosecution is instituted summarily.
W.G. v. Her Majesty the Queen
Criminal law — Offences — Elements of offence
W.G. had a sexual relationship with the complainant when the complainant was 15 years of age. He believed the complainant was 18 years of age. W.G. was convicted of sexual interference. A charge of sexual assault was stayed conditionally. The Court of Appeal dismissed an appeal.
Her Majesty the Queen v. Keith Boucher
Criminal law — Aboriginal law — Aboriginal rights
In October 2010, Mr. Boucher hunted a moose for a friend for use as part of a traditional Mi’kmaq wedding ceremony. Mr. Boucher was charged with possessing a moose carcass contrary to s. 58 of the New Brunswick Fish and Wildlife Act, SNB 1980, c F‑14.1. At trial, Mr. Boucher admitted the essential elements of the offence but argued he was entitled to possess the moose carcass without a permit or licence as an Aboriginal right under s. 35 of the Constitution Act, 1982. Mr. Boucher was convicted of possessing a moose carcass contrary to s. 58 of the Fish and Wildlife Act. The New Brunswick summary conviction appeal court dismissed Mr. Boucher’s appeal. The Court of Appeal allowed the appeal, vacated the conviction, and acquitted Mr. Boucher.
Mohammad Shakil Khan, Mason Joaquin Burg v. Her Majesty the Queen
Charter of Rights — Trial within a reasonable time — Criminal law
The applicants were arrested and charged with drug and firearms offences. The applicants elected for trial in Provincial Judges Court. Months later, the Crown preferred a direct indictment, moving the trial process to the Court of Queen’s Bench. The trial judge concluded that there was no Charter breach and dismissed the applications for an order quashing the direct indictment based on a violation of ss. 7, and/or for a stay of proceedings under s. 24(1) due to a breach of s. 11(b) of the Charter. The Court of Appeal dismissed the appeals.
Attorney General of Quebec v. Canadian Wireless Telecommunications Association
Constitutional law — Division of powers — Provincial regulation of online gambling
The respondent, the Canadian Wireless Telecommunications Association, applied for a declaration of constitutional invalidity in respect of s. 12 of the Act respecting mainly the implementation of certain provisions of the Budget Speech of 26 March 2015, S.Q. 2016, c. 7 (Budget Act), which was passed on May 17, 2016 and assented to the next day. Section 12 of the Budget Act amended the Consumer Protection Act, CQLR, c. P‑40.1 (CPA), by adding five new sections to it (ss. 260.33 to 260.37) under Title III.4, “Online Gambling”. The purpose of the five new sections, which are not in force, is to filter illegal online gambling sites. This involves drawing up a list of online gambling sites not authorized under the laws of Quebec and then sending the list to Internet service providers, which are required under s. 260.35 to block access to the sites, subject to the penalty provided for in s. 277 of the CPA, as amended by s. 13 of the Budget Act. It seems that these amendments to the CPA resulted from the recommendations made in the Nadeau report released in December 2014. That report arose from the work of an online gambling committee established by the Quebec government on July 9, 2010. The committee’s mandate was (1) to analyze the social impact of the development of this type of gambling in Quebec, (2) to propose strategies to prevent pathological gambling, and (3) to analyze regulatory, technical, economic and legal measures to counter illegal gambling. The committee was created at the same time that the government authorized Loto-Québec, the state-owned enterprise responsible for gambling, to develop online gambling offerings in order to channel existing online gambling activity to a secure site to be operated by it. In December 2010, Loto‑Québec launched the Espacejeux.com site. However, that initiative was not able to halt the explosion of online gambling sites run by private operators in violation of the Criminal Code, R.S.C. 1985, c. C‑46. The Superior Court declared s. 260.35 of the CPA to be constitutionally invalid. The Court of Appeal dismissed the appeal.
1455257 Ontario Inc. v. Her Majesty the Queen
Taxation — Income Tax — Assessment
On January 3, 2003, 1473661 Ontario Inc. transferred $998,460 for no consideration to 1455257 Ontario Inc., a non-arm’s length corporation. On October 18, 2010, the Minister of National Revenue issued an assessment against 1455257 Ontario Inc. for $702,374.01, on the basis it was liable pursuant to s. 160 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), to pay the taxation amount that 1473661 Ontario Inc. was liable to pay for the taxation year in which the transfer occurred plus interest accrued to the date of the assessment. The Tax Court of Canada dismissed an appeal from the assessment. The Federal Court of Appeal dismissed an appeal.
Attorney General of Canada v. Alexion Pharmaceuticals Inc.
Administrative law — Judicial review — Standard of review
The respondent, Alexion Pharmaceuticals Inc. (“Alexion”), developed the patented medicine, Soliris. It now manufactures and markets it. Soliris is a breakthrough treatment for two rare and life‑threatening blood‑related disorders.
The Patented Medicine Prices Review Board (“Board”) held a hearing regarding the pricing of Soliris in Canada and found that Alexion priced Soliris excessively contrary to ss. 83 and 85 of the Patent Act, R.S.C. 1985, c. P‑4. The Board ordered that excess revenues earned by Alexion be forfeited to the applicant.
The Federal Court dismissed Alexion’s application for judicial review, finding the Board’s decision was reasonable. The Federal Court of Appeal allowed Alexion’s appeal, set aside the judgment of the Federal Court and granted Alexion’s application for judicial review. It found that the Board’s decision was unreasonable, quashed that decision and remitted the matter to it for redetermination, with costs.
Patrick Ehouzou, Carmen Hodonou v. Manufacturers Life Insurance Company, Manulife Financial Corporation, Benesure Canada Inc., Broker Support Centre Inc., Credit Security Insurance Agency Inc., DH Corporation (Finastra TM)
Civil procedure — Class action — Conditions for authorization
In 2014, the applicants applied for mortgage financing through a mortgage broker. They were given a referral form for a product called Mortgage Protection Plan (“MPP”), but they did not purchase it. In 2017, they filed an application for authorization to institute a class action. They wished to represent individuals residing in Canada who had been identified as potential MPP customers after applying for mortgage or real estate financing through a mortgage broker. The applicants alleged that the respondents had violated the class members’ privacy and engaged in various unauthorized and unlawful activities related to the sale and distribution of group credit insurance products for mortgages. The application for authorization largely reflected the proposed class actions brought against the respondents in other provinces in 2013 and 2015. In 2018, a settlement agreement was reached in the action brought in British Columbia, and the agreement was binding on Canadian residents outside Quebec. The Superior Court dismissed the application for authorization on the ground that the criteria in art. 575(2) and (3) of the Code of Civil Procedure were not met. The Court of Appeal dismissed the application for permission to present indispensable new evidence and dismissed the appeal.
D.W.M. v. Her Majesty the Queen
Criminal law — Evidence — Burden of proof
A complainant testified that D.W.M. committed sexual offences against her on a regular basis from 1991 to 2003, when she was between the ages of 5 and 16. D.W.M. testified and denied the allegations. The trial judge convicted D.W.M. for sexual assault, sexual interference, invitation to sexual touching, sexual assault with a weapon, and uttering a threat to cause bodily harm. The Court of Appeal dismissed an appeal.
Ramzi Daniel v. Ville de Mont-Saint-Hilaire, WSP Canada Inc., P. Talbot Inc. and Attorney General of Quebec
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Registrar of the Registration Division of Rouville
Judgments and orders — Judgments rendered in the course of a proceeding
For several years, a legal saga before the Superior Court and Tribunal administratif du Québec has opposed the applicant, Mr. Daniel, mainly to the City of Mont‑Saint‑Hilaire in relation to the legality of the expropriation of land belonging to him. Since 2007, Mr. Daniel has launched various proceedings in connection with the expropriation, the most recent one being a judicial review application seeking to annul both the expropriation proceedings as well as the certificate of authorization issued by the Ministry of the Environment, among others. The judgments underlying the application for leave to appeal concern various incidental applications made by Mr. Daniel in the course of this judicial review proceeding: a recusation application, a revocation application, and an application for a stay of proceedings. The Superior Court dismissed Mr. Daniel’s applications, having found no basis to grant the relief sought. The Court of Appeal determined that appealing the outcome of these applications required leave, which was denied.
Ramzi Daniel v. Ville de Mont-Saint-Hilaire, Jacques Drouin, Bernard Morel, WSP Canada Inc., P. Talbot Inc., Jean-Guy Talbot, Steve Cadrin, DHC Avocats Inc., Attorney General of Quebec (Ministère de l’Environnement et de la Lutte contre les changements climatiques)
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Registrar of the Registration Division of Rouville
Judgments and orders — Judgments rendered in the course of a proceeding
For several years, a legal saga before the Superior Court and Tribunal administratif du Québec has opposed the applicant, Mr. Daniel, mainly to the City of Mont‑Saint‑Hilaire in relation to the legality of the expropriation of land belonging to him. Since 2007, Mr. Daniel has launched various proceedings in connection with the expropriation, the most recent one being a judicial review application seeking to annul both the expropriation proceedings as well as the certificate of authorization issued by the Ministry of the Environment, among others. The judgments underlying the application for leave to appeal concern various incidental applications made by Mr. Daniel in the course of this judicial review proceeding, including, in this case, a second recusation claim. In two separate case conference decisions, the Superior Court of Quebec set hearing dates for Mr. Daniel’s second recusation application. Leave to appeal these scheduling decisions was denied by the Court of Appeal. Before the Court of Appeal, Mr. Daniel sought the suspension of any proceeding that could cause him prejudice pending the outcome of his application for leave to appeal to the Supreme Court of Canada (file no. 39732). This relief was also denied.
Teksavvy Solutions Inc. v. Bell Media Inc., Groupe TVA Inc., Rogers Media Inc., John Doe 1 dba GoldTV.Biz, John Doe 2 dba GoldTV.Ca, Bell Canada, Bragg Communications Inc. dba Eastlink, Cogeco Connexion Inc., Distributel Communications Limited, Fido Solutions Inc., Rogers Communications Canada Inc., Saskatchewan Telecommunications Holding Corporation, Shaw Communications Inc., Telus Communications Inc. and Videotron Ltd.
Charter of Rights — Freedom of expression — Injunctions
An interlocutory order was issued in a copyright infringement action requiring a number of Canadian Internet service providers (ISPs), including the applicant, Teksavvy Solutions Inc. (Teksavvy), to block access to certain websites by their customers. This is known as a site‑blocking order.
The order was sought by a group of Canadian broadcasting companies that broadcast a variety of television programming via television and through online broadcasting or streaming service. The ISPs to whom it applies are not defendants in the action and are not accused of any wrongdoing. ISPs control the infrastructure through which it is possible to access the Internet.
The defendants who are accused of copyright infringement in the action are two unidentified persons responsible for businesses which operate unauthorized subscription services that provide access to programming content over the Internet. The aim of the order is to impede access to the unauthorized subscription services by the named ISPs’ customers.
The Federal Court granted the motion seeking an interlocutory mandatory injunction order. The Federal Court of Appeal dismissed the appeal of the Federal Court’s decision.
Restaurants Canada, St-Hubert Bar-B-Q Ltd., Recipe Unlimited Corporation (formerly Cara Operations Limited), 9226-2443 Québec inc., Restaurant MacGeorge inc., The TDL Group Corp., 9073-0722 Québec inc., McDonald’s Restaurants of Canada Limited, A&W Food Services of Canada Inc. v. Ville de Montréal
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Attorney General of Quebec
Municipal law — By-laws — Zoning — Validity
The respondent, Ville de Montréal, through the Côte‑des‑Neiges–Notre-Dame‑de‑Grâce borough council, passed a by‑law that provided for zoning changes to limit the zones where new fast food restaurants could be established in the borough. The applicants, which are in the restaurant industry and which were affected by the changes, brought an action to contest the validity of the by‑law.
The Superior Court found that the municipal by‑law was valid. The Court of Appeal dismissed the appeal. It held that the provisions in issue did in fact constitute a zoning operation because there were significant differences between a fast food restaurant and other types of restaurants. Ville de Montréal did not have to show that fast food restaurants and other types of restaurants had, from a practical standpoint, a different impact on the use and occupation of land. The court also held that the provisions were not unduly vague.
Sabrina Khan v. Siddique Katiya in his Capacity of the Liquidator of the Estate of the Late Abdul Rauf Khan
Successions — Wills — Interpretation — Condition in will deemed unwritten
The respondent liquidator, Siddique Katiya, applied to the Quebec Superior Court to probate the holograph will of Abdul Rauf Khan (“Testator”). The Testator’s daughter, the applicant Sabrina Khan (“Sabrina”), applied to deem unwritten the conditions in the will attached to the universal legacy in her favour as impossible to satisfy or contrary to public order, pursuant to art. 757 of the Civil Code of Quebec (C.C.Q.).
The Quebec Superior Court probated the will, deemed the conditions attached to the universal legacy unwritten as contrary to public order, struck the universal legacy in favour of Sabrina from the will as being contrary to the Testator’s intention and declared that it was the Testator’s intent that his succession be distributed according to the other legacy in the will.
A majority of the Quebec Court of Appeal allowed the appeal in part. It agreed that the conditions were against public order and had to be deemed unwritten. However, it found that the two contradictory legacies of equal rank and value could not be resolved by referring to the Testator’s intent, which was contrary to public order, and those legacies therefore had to be deemed without effect. The remaining estate had to devolve in accordance with the rules governing the legal devolution of successions, pursuant to art. 736 C.C.Q. One judge at the Court of Appeal would have allowed the appeal, declared that Sabrina was the universal legatee of the estate and declared that the other legacy was without effect.
Elahe Vahed v. Remax Crossroads Realty Inc., Mohmmad Danesh, Michael Bury
Property — Real property — Summary judgment
The respondent, Mohmmad Danesh agreed to purchase a condominium from the applicant, Elahe Vahed. The purchase failed to close after the closing date had been extended twice. Ms. Vahed claimed that there was never a second extension agreement and, if it existed, it was invalid. Mr. Danesh commenced an action against Ms. Vahed seeking the return of his deposit paid to Ms. Vahed and damages. Ms. Vahed counterclaimed against the purchaser, Mr. Danesh; the listing broker, Re/Max; and her lawyer, Mr. Bury.
By way of motions for summary judgment, Ms. Vahed was ordered to pay damages to Mr. Danesh and Ms. Vahed’s claims against the respondents were dismissed with costs. At the Court of Appeal, Ms. Vahed’s motion to introduce fresh evidence was dismissed. Her request for leave to appeal the costs award in favour of Re/Max was denied and the appeal dismissed.
Buddy Vernon Cook, Cindy Mildred Cook, Robert Leo Vernon Cook v. Municipality of the District of St. Mary’s, Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia
Property — Real property — Expropriation
In 2017, the Municipality of the District of St. Mary’s expropriated a gravel laneway that connects the Village of Sherbrooke with Sherbrooke Lake. The Municipality filed an application at the Supreme Court of Nova Scotia pursuant to s. 17 of the Expropriation Act, R.S.N.S. 1989, c. 156, to determine who may be entitled to compensation as a result of the expropriation. The applicants claimed to have acquired, by prescription, a private right of way over the laneway. The Supreme Court of Nova Scotia concluded that the laneway was public at the time of expropriation and that the applicants did not have any private right of way over it. The applicants appealed the decision; however, the Nova Scotia Court of Appeal dismissed the appeal.
Phillip James Tallio v. Her Majesty the Queen
Criminal law — Appeal — Unreasonable verdict
Mr. Tallio plead guilty to second degree murder. The trial judge sentenced Mr. Tallio to life imprisonment without eligibility for parole for 10 years. Since being sentenced, Mr. Tallio has asserted his innocence. His conviction appeal was dismissed.
Bell Canada, Cogeco Cable Inc., Rogers Communications Inc., Shaw Communications Inc., Vidéotron Ltd. and Telus Communications Inc. v. Copyright Collective of Canada, Border Broadcasters Inc., Canadian Broadcasters Rights Agency, Canadian Retransmission Collective, Canadian Retransmission Right Association, Direct Response Television Collective Inc., FWS Joint Sport Claimants Inc., Major League Baseball Collective of Canada, Society of Composers, Authors and Music Publishers of Canada and Canadian Cable Systems Alliance
Administrative law — Judicial review — Boards and tribunals
The Copyright Board of Canada determined the quantum of royalty rates payable under the Tariff for the Retransmission of Distant Television Signals, 2014‑2018, thereby exercising the discretion conferred by s. 70 of the Copyright Act, R.S.C. 1985, c. C‑42.
Six broadcasting distribution undertakings (BDUs) applied for judicial review of this decision. The Federal Court of Appeal dismissed the application for judicial review brought by the BDUs.
The decision was also challenged, in a separate application for judicial review, by nine collective societies (Collectives). The Federal Court of Appeal partially granted the Collectives’ application for judicial review. It found that the Board did not err in capping the rates for 2014 and 2015 at the rates originally proposed by the Collectives. However, it did set aside the Board’s decision to the extent of its use of the wrong pricing data in its proxy price calculation and of the wrong profit margin. The matter was remitted back to the Board for determination.
Geox S.p.A. v. Giuseppe De Luca
Intellectual property — Trademarks
Guiseppe De Luca is the owner of Canadian trademark registration No. TMA 375,888 for the trademark ANFIBIO & Design (“Mark”). At the request of Geox S.p.A., the Registrar of Trademarks amended the registration to delete the goods category “shoes” from the statement of goods, but was satisfied that the Mark had been used in association with the goods category “boots” within the three years preceding the notice sent pursuant to s. 45 of the Trademarks Act, R.S.C. 1985, c. T‑13. Even though there were differences between the registered Mark and the variant on the mark that the licensee had used, the variant was recognizable as the Mark.
The fact that Mr. De Luca’s exclusive licensee had not been expressly permitted to use a variant of the Mark was not fatal since the variant used was the same trademark. The copyright notices on the licensee’s website did not affect the Mark’s validity, even though they referred to a third party.
Geox’s application for judicial review was dismissed. Geox’s appeal was also dismissed.
Yau Wah Steve Lam v. Governors of the University of Calgary, Derek Lichti, Marcia Buchholz, Tanya Brucker, Alberta Union of Provincial Employees
Appeals — Case management
The applicant, Mr. Lam, sued the University of Calgary and three of its officers (“University”) for breach of employment contract, discrimination, interference with contractual relations, intentional infliction of mental distress and conspiracy. In the same statement of claim, Mr. Lam also sued the Alberta Union of Provincial Employees (“AUPE”) for breach of its duty to fairly represent him in the grievance and arbitration processes, conspiracy and various other causes of action.
At the Court of Queen’s Bench of Alberta, Mr. Lam’s claim against the University was summarily dismissed by Master Birkett, and Mr. Lam’s appeal of that decision was dismissed by Little J. Mr. Lam’s claim against AUPE was summarily dismissed by Master Summers, and Mr. Lam’s appeal of that decision was dismissed by Whitling J. An application to extend the time to file a notice of appeal from the decision of Whitling J. was dismissed by Watson J.A. in April 2021.
In September 2021, Mr. Lam filed an application for permission to appeal the decisions of Whitling J. and Little J. to the Court of Appeal of Alberta. Mr. Lam named both the University and AUPE as respondents in his application for permission to appeal the decision of Little J. A Case Management Officer informed Mr. Lam that he had no appeal from the decision of Whitling J. because his application to extend the time to file his notice of appeal had been dismissed by Watson J.A. She also informed Mr. Lam that he could appeal the decision of Little J., but that AUPE was not a proper respondent to the appeal of that decision. Mr. Lam applied to overturn the Case Management Officer’s rulings. Justice Khullar dismissed the application and confirmed the rulings.
Samuel Cozak v. Attorney General of Quebec
Civil procedure — Class action.
The applicant, Samuel Cozak, sought authorization to institute a class action on behalf of the inmates of Établissement de détention de Québec (“EDQ”) for the period starting September 9, 2015. He believed that the detention conditions were inappropriate and caused damage of a civil nature to the inmates, in violation of the rights recognized in the Canadian Charter of Rights and Freedoms and the Charter of human rights and freedoms. The respondent, the Attorney General of Quebec, representing the Minister of Public Security, contested all aspects of the application.
The Superior Court dismissed the application for authorization to institute a class action on behalf of current or former inmates of EDQ. It found that the composition of the class made it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others (art. 575(3) C.C.P.) but that the applicant did not meet any of the other three conditions for authorization: there were no common issues (art. 575(1) C.C.P.), the facts alleged did not appear to justify the conclusions sought (art. 575(2) C.C.P.), and the applicant did not have the capacity and qualities needed to properly represent the class members (art. 575(4) C.C.P.). The Court of Appeal dismissed the appeal, finding that the Superior Court judge had not made any reviewable error in assessing the conditions set out in art. 575(2) and (4) C.C.P. and that it was therefore unnecessary to consider the judge’s assessment of the common issues condition in art. 575(1).