Supreme Advocacy
Issue #75
November 20, 2014
SCC Today: 1 Oral Judgment, 1 Appeal and 16 Leaves (1 granted)

Supreme One-Liners

Oral Judgment

British Columbia Teachers' Federation v. British Columbia Public School Employers' Association, 2013 BCCA 405 (35623) 
Deference to arbitrators.


R. v. Wills, 2014 ONCA 178 (35804) 
Home invasion, based on circumstantial evidence, upheld.

Leave to Appeal

Canada (Indian Affairs) v. Daniels, 2014 FCA 101 (35945) 
Are Métis/Non-Status Indians a federal or provincial jurisdiction. 


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Oral Judgment

Labour Law: Supplemental Employment Benefits Re Maternity/Parental Leave

British Columbia Teachers' Federation v. British Columbia Public School Employers' Association, 2013 BCCA 405 (35623) Judgment rendered Nov. 14, 2014

Karakatsanis J. — "The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits.  The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy.  The appeal is allowed with costs and the Arbitrator’s award is restored."


Criminal Law: Circumstantial Evidence 

R. v. Wills, 2014 ONCA 178 (35804) Judgment rendered Nov. 20, 2014
"The appellant was convicted of robbery with a firearm, unlawful confinement, disguise with intent to commit an indictable offence, and possession of a weapon for the purpose of committing an indictable offence. At trial, identity was the central issue. Neither victim of the home invasion could identify the appellant. The Crown’s case rested on circumstantial evidence. The appellant appealed his conviction, arguing, among other things, that the verdict was unreasonable. A majority of the Court of Appeal dismissed the appeal. Pepall, J.A., dissenting, would have allowed the appeal, set aside the conviction and entered acquittals on all charges. In her view, the Crown’s evidence, which amounted to inconclusive DNA evidence coupled with a baton found in the appellant’s residence which could not be connected to the crime scene, could not support a conclusion that the appellant was the perpetrator of the crimes."   

The S.C.C. held (3:2) that the appeal is dismissed.

Rothstein J. — "The majority of the Court is of the view that the appeal should be dismissed for the reasons of Doherty J.A. in the Court of Appeal. Justices Cromwell and Karakatsanis, dissenting, would have allowed the appeal for the reasons of Pepall J.A."     

Leaves to Appeal


  1. Aboriginal Law: Jurisdiction Over Métis/Non-Status Indians


  1. Civil Procedure: Costs Where Counsel Acting Pro Bono
  2. Civil Procedure: Government Liability; Promissory Estoppel; Unreasonableness
  3. Civil Procedure/Insurance: Limitation Periods
  4. Civil Procedure: Pay-Day Loans; Litigate or Arbitrate 
  5. Civil Procedure/Trusts: Limitation Periods
  6. Criminal Law: Dangerous Offenders
  7. Criminal Law: Forfeiture
  8. Criminal Law: Homicide; Parties To An Offence
  9. Criminal Law: Mental Health Diversions 
  10. Extradition
  11. Immigration: Refugees; Prior Criminal Acts
  12. Insurance in Québec: Intoxicated Vehicle-Borrowers
  13. Insurance: Waivers
  14. Professions in Québec: (Alleged) Negligence
  15. Real Property: Repurchase Clauses

Granted (1)


Aboriginal Law: Jurisdiction Over Métis/Non-Status Indians

Canada (Indian Affairs) v. Daniels, 2014 FCA 101 (35945) 
In 1999, the Applicants instituted proceedings in Federal Court in order to resolve a long-standing issue as to which of Canada or the provinces has jurisdiction over the Métis and non-status Indian peoples. Specifically, they sought to obtain a determination the federal government has constitutional jurisdiction pursuant to s. 91(24)  of the Constitution Act, 1867  over Métis and non­status Indians.  In Federal Court, they sought the following declarations: (a) that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution Act, 1867 ; (b) the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people; and (c) the Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples. Federal Court: declaration issued that “those persons who are Métis and those who are non-status Indians [...] are ‘Indians’ within the meaning of the expression ‘Indians and Lands reserved for the Indians’ contained in s. 91(24)  of the Constitution Act, 1867 ”; further declaratory relief, denied. C.A.: appeal allowed, in part; cross-appeal dismissed; declaration set aside and restated by deleting reference to “non-status Indians”.  "The motion of the intervener Métis National Council for an extension of time to serve and file a response to the application for leave to appeal and for leave to file a response to the application for leave to cross-appeal is granted.  The application for leave to appeal... is granted with costs in any event of the cause. The application for leave to cross-appeal is granted.  A party having intervened in the Federal Court of Appeal and wishing to intervene before this Court shall seek leave to intervene."

Dismissed (15)


Civil Procedure: Costs Where Counsel Acting Pro Bono

Lucian Bogdan Molea v. Malcolm Rains, ONCA M43029 (35954)
The Respondent, Mr. Rains, sued the Applicant, Mr. Molea, for copyright infringement, seeking damages of about $6M.  The Ontario Superior Court of Justice dismissed the action.  Both parties were represented by counsel acting on a pro bono basis.  Mr. Molea then requested costs on a substantial indemnity basis.  Relying on 1465778 Ontario Inc. v. 1172077 Ontario Ltd. (2006), 82 O.R. (3d) 757, he asserted a pro bono party should be entitled to costs. The trial judge agreed, but decided to only award Mr. Molea his disbursements ($18,724.41 plus tax) in the circumstances.  The C.A. dismissed Mr. Molea’s application for leave to appeal on the costs issue, without reasons. "The application for leave to dismissed with costs." 

Civil Procedure: Government Liability; Promissory Estoppel; Unreasonableness 

Malcolm v. Canada (Fisheries and Oceans), 2014 FCA 130 (36012) 
The Applicant and those he represented were commercial fishermen holding licences to harvest halibut off the coast of B.C.  They brought an application for judicial review of a 2012 decision by the Minister of Fisheries and Oceans that changed their allocation of the total allowance catch (TAC) for halibut from 88% to 85%, with the lost 3% being allocated to the recreational fishing industry without using a market based mechanism to effect the transfer.  The Applicant alleged the corresponding reduction in his individual transferable quota and the pounds of halibut he can land and sell, injuriously affects his ability to earn a livelihood from the fishery.  He argued the decision was unreasonable in that it lacked justification, transparency and intelligibility; was contrary to previous assurances from the Minister upon which commercial fishermen relied in good faith to their detriment; and was contrary to the recommendations of the Department.  He also relied upon the doctrine of promissory estoppel and claimed the Minister violated legitimate expectations a market based process would be followed in adjusting the allocation of TAC. The Federal Court dismissed the application for judicial review. The reviewing judge held there was no basis upon which to interfere with the decision or to invoke public law promissory estoppel, and  the doctrine of legitimate expectations had no application to the decision.  The Federal C.A. dismissed the Applicant’s appeal. "The application for leave to dismissed with costs to the Minister of Fisheries and Oceans as represented by the Attorney General of Canada."
Civil Procedure/Insurance: Limitation Periods
Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 (35825) 
Ms. Sietzema was injured in a MVA in 2005.  On December 19, 2005, Economical Mutual Insurance Company denied Non-Earner Benefits, stating it did so because Ms. Sietzema was employed at the time of the accident.  It paid Income Replacement Benefits of $400 per week until March 2, 2006.  Ms. Sietzema returned to work in February, 2006. Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, subsequently clarified a person able to continue to work may nevertheless qualify for Non-Earner Benefits.  Ms. Sietzema filed for arbitration seeking Non-Earner Benefits in April 2012 and filed a Statement of Claim on April 14, 2011.  Economical Mutual Insurance Company applied for summary judgment dismissing the claim, arguing it was statute-barred by a two year limitation period that began when it denied Non-Earner Benefits. Ontario Superior Court of Justice: summary judgment granted; claim held statute-barred by limitation period and dismissed. C.A.: appeal dismissed. "The application for leave to dismissed with costs."

Civil Procedure: Pay-Day Loans; Litigate or Arbitrate 

Briones v. National Money Mart Co. et al., 2014 MBCA 57 (36028) 
Between September 2001 and July 2006, Ms. Briones obtained 99 Fast Cash Advances from National Money Mart (“Money Mart”).  Each time, she signed an agreement which contained a clause agreeing any claim, dispute or issue arising in connection with the loan could be referred to mediation and/or arbitration by either party.  When she repaid the loans using Money Mart’s cheque-cashing service, she was also charged cheque-cashing fees.  Arguing those fees were “interest” resulting in interest in excess of the 60% permitted by s. 347  of the Criminal Code, R.S.C. 1985, c. C-46 , she initiated an action on her own behalf and on behalf of the proposed class under the Manitoba Class Proceedings Act seeking an accounting and repayment of all cheque-cashing fees.  She also sought declarations the cheque-cashing fees paid were interest under s. 347 of the Criminal Code, and the agreements under which the moneys were advanced were unlawful, failed to comply with the Consumer Protection Act and constituted harsh or unconscionable transactions within the meaning of the Unconscionable Transactions Relief Act.  Finally, she claimed the Dollar Financial Group, Inc. was jointly and severally liable for any liability of Money Mart. Money Mart argued Ms. Briones’ claim should be stayed because she had entered into multiple written agreements requiring her to mediate and/or arbitrate the disputes.  It asked the court to compel her to proceed with arbitration and/or mediation of her disputes.  Based on the Unconscionable Transactions Relief Act, the Consumer Protection Act, and Seidel v. TELUS Communications Inc., 2011 SCC 15, the motion judge dismissed the motion to stay or dismiss the action.  The C.A. dismissed the appeal. "The application for leave to dismissed with costs."

Civil Procedure/Trusts: Limitation Periods

Rajmohan v. Norman H. Solmon Family Trust, 2014 ONCA 352 (35992) 
Norman Solmon was a chartered accountant who also operated a private lending business for several years.  In 2006, he made a loan of $125,000 to Mr. and Mrs. Rajmohan (the “mortgagors”), secured by second and third mortgages on their home.  He died on October 2, 2007.  Upon his death, those mortgages were assigned to the Norman H. Solmon Family Trust (the “Family Trust”).  Mr. Chandran was the lawyer who acted for Mr. Solmon on the mortgages.  He also acted for the mortgagors and registered both mortgage loans on Mr. Solmon’s behalf.  Mr. Chandran died on November 23, 2007.  His widow, Mrs. Chandran, is the trustee and executor of her late husband’s estate.  The mortgagors subsequently defaulted on the two loans and the Family Trust commenced default proceedings in September, 2008, which the mortgagors defended.  The mortgagors subsequently declared bankruptcy.  The Family Trust sought access to Mr. Chandran’s file and finally obtained it in April, 2009.  More than two years after the death of Mr. Chandran, the Family Trust commenced the third party action in 2010, alleging negligence by Mr. Chandran in handling the mortgages, fraudulent concealment and special circumstances.  Mrs. Chandran, on behalf of the estate, brought a motion for summary judgment arguing the limitation period under s. 38(3) of the Trustee Act barred the third party claim. Ontario Superior Court of Justice: third party claim against estate trustee dismissed on motion for summary judgment. C.A.: appeal dismissed. "The application for leave to dismissed with costs."
Criminal Law: Dangerous Offenders
R. v. Szostak, 2014 ONCA 15 (35983) 
The Applicant was found guilty of: assault causing bodily harm, aggravated assault, assault with a weapon, possession of a dangerous weapon, threaten death, obstruct justice and breaching multiple probation orders.  The trial judge dismissed the Respondent’s application to declare the Applicant a dangerous offender.  A term of imprisonment of six years was imposed after allowing credit for pre-trial custody.  The C.A. dismissed the Applicant’s conviction appeal and allowed the Respondent’s appeal against sentence.  The Applicant was declared a dangerous offender.  A term of five years imprisonment and a ten-year supervision order was imposed. "The motions for an extension of time to serve and file the application for leave to appeal and the applicant’s reply are granted. The application for leave to dismissed without costs."
Criminal Law: Forfeiture
R. v. Montague, 2014 ONCA 439 (36022)
The Applicants were convicted of firearms offences in 2007.  Following the imposition of sentence, the trial judge deferred the forfeiture order until after the disposition of the appeals against conviction and sentence.  The appeal was dismissed and the C.A. returned the issue of forfeiture to the trial judge. At the forfeiture hearing, the Applicants made a constitutional challenge to the mandatory forfeiture provision in s. 491(1) (b) of the Criminal Code. "The application for leave to dismissed without costs." 

Criminal Law: Homicide; Parties To An Offence

R. v. Esrabian, 2013 ONCA 761 (35966) 
Mr. Hassan, a drug dealer, was lured to a remote location near Ottawa and fatally shot.  The Crown alleged he was murdered because he had tried to circumvent his cocaine supplier, Mr. Saleh, and deal directly with Mr. Saleh’s supplier. The Crown’s theory was Mr. Saleh enlisted the help of Mr. Esrabian, also a drug dealer, and Mark Yegin.  The Crown argued the three men, together, lured Mr. Hassan to the murder site. There was conflicting evidence as to who fired the fatal shots but, on the Crown’s theory, it did not matter because the Crown argued Mr. Esrabian was guilty of first degree murder either because he was the shooter or because he had been a party to the planning, deliberation and murder of Mr. Hassan.  Mr. Esrabian acknowledged he drove with Mr. Saleh to meet Mr. Hassan at the murder site but he testified he only had anticipated committing an assault.  He testified Mr. Yegin unexpectedly shot Mr. Hassan. A jury convicted Mr. Esrabian of first degree murder. C.A.: appeal dismissed. "The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to dismissed without costs." 

Criminal Law: Mental Health Diversions 

R. v. Goebel, 2014 ONCA 451 (36008) 
The Applicant, Mr. Goebel, suffered from schizophrenia.  In April 2010, he was charged with aggravated assault and threatening death.  When the Respondent Crown refused to agree to a mental health diversion of the charges, Mr. Goebel made an application, asserting the Crown was engaged in an abuse of process by insisting on a trial.  He sought various extraordinary remedies arising out of alleged violations of ss. 7  and 15  of the Charter , including a stay of proceedings and the quashing of the criminal proceedings in provincial court.  The Superior Court granted a motion to dismiss filed by the Crown and dismissed Mr. Goebel’s application.  Among other things, the Court noted the Ontario directive to Crown counsel on the use of diversions where an accused has mental health problems prohibits diversion where the offence caused serious bodily harm.  In his view, that policy was not arbitrary.  Rather, it was rationally connected to the objective explicitly mentioned in s. 717(1)  of the Criminal Code  of protecting society.  In addition, the Court found Mr. Goebel, in any event, had not met the criteria of s. 717 (a)(e), since there was no evidence he had accepted responsibility for the act or omission that formed the basis of the charges.  In May 2014, the Crown withdrew the charges against Mr. Goebel and he entered into a peace bond.  In June 2014, the C.A. quashed Mr. Goebel’s appeal on the basis it was moot. C.A.: Respondent’s motion to quash allowed; appeal quashed. "The application for leave to dismissed without costs." 


Bédard c. Canada (Procureur général) (États-Unis d'Amérique), 2014 QCCA 1123 (36018) 
In July 2009, the U.S. requested Mr. Bédard’s extradition for prosecution on charges of conspiracy to traffic in a large quantity of marijuana and ecstasy.  In December 2010, the Minister of Justice of Canada responded by signing an order to surrender Mr. Bédard.  Mr. Bédard applied to the C.A. for a review of that decision.  Before his application for judicial review was heard, and while he was subject to release conditions, he was arrested for impaired driving causing bodily harm.  In January 2012, the C.A. dismissed the application for judicial review.  On March 8, 2012, the Minister of Justice amended the surrender order against Mr. Bédard to order his immediate surrender notwithstanding the pending charges for impaired driving causing bodily harm, as permitted by s. 64  of the Extradition Act .  The next day, Mr. Bédard was surrendered to the American authorities.  In late March 2012, Mr. Bédard applied for leave to appeal the decision of the C.A. dismissing his application for judicial review.  In June 2012, the Court dismissed the application.  This application for leave to appeal concerns a decision of the C.A. dated May 27, 2014, dismissing a second application filed by Mr. Bédard seeking judicial review of the amended surrender order and damages under s. 24(1)  of the Charter .  Mr. Bédard is currently serving a four‑year prison sentence in the U.S. after pleading guilty on September 28, 2012 to charges on which his extradition was based. "The application for leave to dismissed without costs." 

Immigration: Refugees; Prior Criminal Acts

Sanchez v. Canada (Citizenship and Immigration), 2014 FCA 157 (36049) 
In 2008, the Applicant, a citizen of Mexico, sought refugee status in Canada, arguing he feared persecution in Mexico by reason of his membership in a particular social group and due to his political opinions.  Before the Refugee Protection Division of the Immigration and Refugee Board of Canada, the Minister of Citizenship and Immigration brought an application requesting the Applicant be excluded from refugee protection because he had committed a serious non-political crime abroad prior to his admission to Canada as a refugee. In and around 1997, while living in the U.S., the Applicant was arrested for, pled guilty and was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine.  At the time of the Applicant’s offence (1996), the crime for which he was convicted was not a strictly indictable offence but rather was a hybrid offence.  However, at the time of the application for exclusion brought before the Refugee Protection Division (2011), that same offence, was an indictable, not hybrid, offence. Immigration and Refugee Board: Applicant’s claim for refugee status rejected. Federal Court: application for judicial review dismissed. C.A.: dismissed. "The application for leave to dismissed without costs."
Insurance in Québec: Intoxicated Vehicle-Borrowers
Marcheterre v. Fédération (La), compagnie d'assurances du Canada, 2014 QCCA 1026 (35988) 
In June 2000, Mr. Labrosse and Ms. Rollin (the Respondents) called upon some friends to help them move.  The friends included Ms. Marcheterre (the Applicant) and her spouse, Mr. Paquette.  Early in the afternoon, the Respondents provided alcoholic beverages for their guests.  In the evening, Mr. Paquette borrowed Mr. Labrosse’s uninsured and unregistered all-terrain vehicle (ATV) without asking his permission.  Mr. Paquette, who was intoxicated at the time, fell from the vehicle while driving off-road and was seriously injured.  He brought an action in extracontractual liability against the Respondents seeking $7,396,084 in damages on a ‘solidary’ basis.  (The Applicant later continued the action as liquidator of the succession.) The Superior Court dismissed the action, and the C.A. dismissed the appeal.  The C.A. found the Respondents’ conduct was consistent with what would have been done by an ordinarily prudent and diligent person placed in the same circumstances, in accordance with the civil liability rules applicable in Quebec law.  It held that Mr. Paquette’s accident could be explained by his advanced state of intoxication and his [translation] “sudden decision to take a ride on a three wheeler without the Respondents’ knowledge” (para. 69) and the accident “could result only from an error in judgment on his part” (para. 57).  The C.A. stated the rules in ss. 108 to 114 of the Automobile Insurance Act create a scheme of presumptions that applies only where there is a victim who is neither the owner nor the driver of the vehicle involved. "The application for leave to dismissed with costs."
Insurance: Waivers
Niedermeyer v. Charlton, 2014 BCCA 165 (35960) 
In 2008, Ms. Niedermeyer had been working as a teacher in Singapore for twenty years, when she travelled to B.C. with a group of her students to attend an international conference in Victoria.  Following the conference, Ms. Niedermeyer had arranged other activities for her group including a zip line tour in the valley between Whistler and Blackcomb mountains.  Upon arrival at the lodge in Whistler Village, the group was given helmets and harnesses and received some training.  Ms. Niedermeyer was given releases provided by Ziptrek to sign on behalf of herself and her students.  In accordance with Ziptrek policies, staff advised them a signed release was required before they could participate in the activity.  The group was then taken up the mountain by van to the start of the zip line course.  On the return trip to Whistler Village, the bus operated by the Applicant, William Charlton, an employee of Ziptrek, went off the road, overturned and rolled down a hill.  Ms. Niedermeyer suffered significant injuries and brought an action for damages against Ziptrek and Mr. Charlton.  Ziptrek admitted liability for the accident.  The parties agreed the issue of whether the release signed by Ms. Niedermeyer should bar her from succeeding in the action should be decided prior to a trial on the issue of damages and contributory negligence. B.C.S.C.: Respondent’s action for damages dismissed on ground that she had waived all claims for damages. B.C.C.A.: Respondent’s appeal allowed; matter remitted to trial court for assessment of damages. "The application for leave to dismissed with costs."
Professions in Québec: (Alleged) Negligence
Lubecki v. Lavin, 2014 QCCA 1081 (36015) 
The Applicant, Mr. Lubecki, hired the Respondent, Mr. Lavin, to represent him in the course of divorce proceedings initiated by his ex-wife in 2010.  He then sued Mr. Lavin, alleging he had not properly executed his mandate during the proceedings on corollary relief. The Superior Court dismissed the action against Mr. Lavin.  Bénard J. found Mr. Lavin did not commit any fault.  The C.A. dismissed the appeal summarily, on the basis it had no reasonable chance of success. "The application for leave to dismissed with costs." 
Real Property: Repurchase Clauses
457351 Ontario Inc. v. Golfnorth Properties Inc., 2014 ONCA 382 (35970) 
In 2006, Ms. Vacca and her father owned land neighbouring a golf course belonging to Golf North Properties Inc.  Golf North agreed to purchase the Vaccas’ land for $1,600,000, $800,000 of which was paid in cash.  The Vaccas then took back a mortgage for the remaining $800,000.  It was agreed that Golf North had five years to obtain golf course zoning, failing which it was to notify the Vaccas.  At that point, Golf North could choose to pay out the mortgage in full, otherwise the Vaccas would have the option to repurchase the property “for $1,200,000 free of liens and encumbrances with the exception of the Mortgage.” The agreement also included the following statement: “For greater clarity and in conjunction with the Option described above, the Mortgagee [the Vaccas] shall upon exercising the Option, purchase the Property by paying to the Mortgagor [Golf North] the sum of $1,200,000.00 whereupon the Mortgagor shall be deemed to have satisfied the Mortgage in full”. When Golf North did not obtain the golf course zoning and refused to pay out the mortgage in full, the Vaccas exercised their repurchase option.  However, the parties disagreed on the amount payable and applied to the Ontario Superior Court of Justice to have the repurchase price judicially determined.  The Superior Court of Justice ruled in favour of Golf North, and the C.A. dismissed the appeal. "The motion for a stay of execution is dismissed. The application for leave to dismissed with costs." 

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Affidavits of Documents/Affidavits of Records

Canadian Natural Resources Ltd. v. ShawCor., 2014 ABCA 289

Keywords: Affidavits of Documents/Records

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I just wanted to point out that you omitted to credit the U.S. Supreme Court dogs to John Oliver and his show Last Week Tonight (tho’ it is credited on the YouTube hyperlink). These dogs, like many other creations have become quite famous, as has John Oliver and the show. The first season of 24 episodes just ended but the show has been renewed by HBO for 2015. For those who are not familiar with the show, think Jon Stewart or Stephen Colbert, except funnier, more satirical and more cutting edge.

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