September 29, 2021 | Issue 53

Today at the SCC: 16 Leaves 

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Leave Applications: 16 Dismissed


Appeals: Extension of Time

Ali v. R., 2021 ONCA 218 (39730)
The Applicant was convicted of failure to comply with a term of an undertaking and assault. A summary conviction appeal was dismissed. A judge of the C.A. dismissed a motion for an extension of time to appeal. The Applicant applied for an extension of time to have a panel of the Ont. C.A. review the decision denying an extension of time. A judge of the Ont. C.A. dismissed the application. The Ont. C.A. dismissed an appeal from that decision. "The application for leave to dismissed."

Bankruptcy & Insolvency: Claims Process

Canada Investment Corporation v. Stanbarr Services Limited, et al., 2020 ONCA 846 (39671)
The Respondent, Rosen Goldberg Inc., was appointed as receiver in the receivership of debtors of the Applicant, Canada Investment Corporation (“CIC”), pursuant to the Bankruptcy and Insolvency Act, and the Ontario Courts of Justice Act. Around the same time, a principal of CIC and related corporations was charged with fraud. Resulting publicity led to claims being advanced in the receivership to freeze surplus proceeds arising from the sale of any of the properties under receivership. A claims process was established in the receivership. Properties under receivership were sold and proceeds recovered. Stanbarr Services Limited and the other Respondents (collectively, “Stanbarr claimants”), who are creditors of CIC, moved in the receivership for an order requiring the receiver to pay into court the surplus proceeds from the sale of one of the properties to which CIC was entitled, to meet their claim against CIC arising out of an action they were pursuing against CIC, involving another property. At a trial in that action against CIC, the Stanbarr claimants successfully challenged the validity of CIC’s notice of sale on the relevant property. In a report to the court, the receiver recommended the Stanbarr claim be allowed. To arrive at the recommendation, the receiver relied on the judge’s findings in the trial in the Stanbarr claimants’ action against CIC. CIC opposed the receiver’s recommendation. The Superior Court accepted the receiver’s recommendation, holding the receiver was correct in relying on the decision in the Stanbarr claimants’ action against CIC to conclude the funds should be paid to the Stanbarr claimants. CIC’s appeal was dismissed. "The application for leave to dismissed without costs."

Civil Procedure: Prematurity

Honourable Gérard Dugré v. Attorney General of Canada, 2021 FCA 8 (39614)
The Applicant, the Honourable Gérard Dugré, has been a judge of the Québec Superior Court since January 2009. Complaints about him were filed with the Canadian Judicial Council. In general terms, the complaints concerned the failure by the Applicant to render decisions in a timely manner as well as certain comments or statements considered inappropriate in the hearing context. The Applicant filed five applications for judicial review of administrative decisions made during the various steps leading to an inquiry by the Inquiry Committee that may be formed by the Canadian Judicial Council under s. 63(3) of the Judges Act. The Respondent, the Attorney General of Canada, filed motions to strike out each of the five applications for judicial review, mainly on the doctrine of prematurity given the remedial recourses available through the administrative process itself. The Federal Court rendered two decisions on the motions to strike. In files T‑1622‑19 and T‑1637‑19, the Federal Court ordered the notices of judicial review be struck out without leave to amend. In files T‑1818‑19, T‑2010‑19 and T‑450‑20, the Federal Court allowed the application to strike out the applications for judicial review that had been filed. The Fed. C.A. summarily dismissed the five appeals. "The motion for permission to join five (5) files from the Federal Court of Appeal is granted. The application for leave to dismissed. Wagner C.J. and Côté J. took no part in the judgment."

Civil Procedure: Prematurity

Honourable Gérard Dugré v. Attorney General of Canada, 2021 FCA 40 (39636)
Similar summary to that immediately above. "The motion for permission to join three (3) Federal Court of Appeal files is granted. The application for leave to dismissed. Wagner C.J. and Côté J. took no part in the judgment."

Contracts in Québec: Principle of Relativity

Ferme Alsace Holstein v. Cimentier Steve Dumas inc., 2021 QCCA 324 (39640)
In 2017, the Applicant, Ferme Alsace Holstein s.e.n.c (Alsace), engaged the general contractor Groupe HJF Construction inc. (HJF) to enlarge its cowshed. In July 2017, HJF entered into a subcontract with the Respondent, Coffrage Cimentier Steve Dumas inc. (Cimentier), and in August 2017, Alsace and HJF entered into a contract of enterprise for the extension project. The project’s first phase was completed in late October 2017, and Cimentier sent a first invoice to HJF. After that invoice was sent, a conversation about payment for the work took place in mid-November 2017 between Mr. Dumas, Cimentier’s principal shareholder and director, and Mr. Kelhetter, one of Alsace’s partners. HJF paid Cimentier’s invoice in late November 2017, and Cimentier then carried out the work on the project’s second phase and also carried out other work agreed on directly with Alsace. In late December, Cimentier submitted two invoices to Alsace, including one dated December 21, 2017 for the second phase of the project. HJF made an assignment of its property in 2018. Cimentier brought an action on account against Alsace for the unpaid amount of its invoice of December 21, 2017. It asserted Mr. Dumas and Mr. Kelhetter had entered into a new agreement in the mid‑November 2017 telephone conversation according to which Alsace had undertaken to pay Cimentier directly for the work done in the extension project’s second phase. The Qué. Superior Court dismissed the originating application, and the Qué. C.A. allowed the appeal. "The application for leave to dismissed."

Contracts: Undercover Police Agents

Agent E v. Canada (Attorney General), 2021 BCCA 102 (39652)
There is a sealing order in this case, in the context of an undercover agent seeking damages for breach of contract and unjust enrichment. "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."

Criminal Law: Attempted Murder; Homicide; DNA

Regis v. R., 2020 QCCA 1210 (39658)
Two men burst into a clothing store and fired at the people in it, killing two of them and seriously wounding two others. The two gunmen immediately left the scene and got into a van driven by the Applicant, Carey Isaac Regis. Mr. Regis and the two gunmen were charged with two counts of attempted murder using firearms and two of first degree murder. In the Québec Superior Court, the jury returned verdicts Mr. Regis and the other two accused were guilty on two counts of attempted murder using firearms and two of first degree murder. The accused appealed the guilty verdicts. More specifically, Mr. Regis raised an argument to the effect the judge’s instructions regarding DNA evidence were insufficient and, in any event, wrong in law. The Qué. C.A. rejected this ground of appeal and dismissed the appeal of the guilty verdicts.  "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."

Criminal Law: Curative Proviso

Frigon v. R., 2020 BCCA 315 (39535)
At trial, the Applicant, Mr. Frigon, was convicted of assault causing bodily harm after a physical altercation occurred between himself and another man in the bathroom of a pub. The B.C.C.A. dismissed Mr. Frigon’s appeal in which he raised six grounds of appeal and sought to admit fresh evidence. On the basis of the curative proviso, the B.C.C.A. found there were some errors made by the trial judge and some irregularities in the trial process, but when considered in light of the evidence and the reasons for judgment as a whole, none of those errors or irregularities were sufficient to justify intervention. It rejected Mr. Frigon’s submission the cumulative effect of the alleged errors made by the trial judge resulted in a miscarriage of justice. "The application for leave to dismissed."

Criminal Law: “Planned & Deliberate”

P. v. R., 2021 NLCA 11 (39646)
There is a publication ban in this case, in the context of what is “planned and deliberate” re s. 231(2), and self-defence. "The application for leave to dismissed."

Criminal Law: Sexual Assault

S.P. v. R., 2021 QCCA 413 (39686)
There is a publication ban in this case, in the context of sexual assault by a father against a daughter. "The application for leave to dismissed."

Family Law: Divorce; Family Assets

Xu v. Hu, 2021 BCCA 2 (39621)
The couple separated and divorced. Litigation ensued to determine the division of family assets and spousal and child support. The trial judge determined the corporate-owned family residence was subject to an express trust in Ms. Hu’s favour and therefore a family asset. Ms. Hu appealed that finding at the B.C.C.A. and the corporate Respondents also appealed that finding. Mr. Xu cross‑appealed both proceedings seeking a larger share of that asset and setting aside an order directing him to bear 50 percent of the residence’s expenses. The B.C.C.A. allowed the appeal in part, setting aside the orders the corporation holds the family residence in trust for Ms. Hu and dividing the beneficial interest in the property between the couple. "The application for leave to dismissed with costs to the respondents, Vancouver International Enterprises Ltd. and Best Honour International Trading & Investment Co. Ltd."

Labour Law: Strike Pickets

Unifor Canada Local 594 v Consumers’ Co-Operative Refineries Limited, 2021 SKCA 34 (39651)
During a labour action, the employer sought an injunction restraining employees from picketing. The motions judge granted an order permitting picketers to delay traffic in and out of the employer’s workplaces in order to communicate information and solicit support, up to a maximum of 10 minutes or until the recipient of the information indicated a desire to proceed, whichever came first. The employees’ union appealed, seeking to have the exception struck from the order. The Sask. C.A. dismissed the appeal. "The application for leave to dismissed with costs."

Labour Law: Union Certification; Standard of Review

Red Chris Development Company Ltd. v. United Steelworkers, Local 1-1937, 2021 BCCA 152 (39668)
The Respondent union submitted an application to the B.C. Labour Relations Board (“Board”) for certification as the bargaining agent for certain employees of the Applicant mining company (“employer”). The employer challenged the union’s application for certification. In its original decision, the Board ordered the votes from the representation vote be counted but the count excluded votes cast by certain employees not obviously captured by the union’s application form to the Board (“disputed employees”). The union applied to the Board for reconsideration. The Board’s reconsideration decision allowed the union’s application. In a further remedial decision, the Board ordered the ballots cast by the disputed employees be counted as well. With these ballots counted, the union had majority support and it was certified as the bargaining agent. The employer petitioned for judicial review. The reviewing judge set aside the Board’s reconsideration and remedial decisions, holding they were patently unreasonable. The B.C.C.A. allowed the union’s appeal. It concluded the reviewing judge applied the correct standard of review to the impugned decisions, holding the standard of patent unreasonableness continues to apply notwithstanding developments of the common law standards of review since passage of the Administrative Tribunals Act. It concluded the Board could not be said to have been patently unreasonable in its reconsideration and remedial decisions. The B.C.C.A. restored those Board decisions. "The motion to expedite the application for leave to appeal is dismissed. The application for leave to dismissed with costs to the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-1937."

Real Estate Agents: Commission

Wang v. Laura W. Zhao Personal Real Estate Corporation, 2021 BCCA 97 (39653)
The Applicant, Mr. Wang, was a businessman who used the services of the Respondent realtors to purchase three side‑by‑side properties in British Columbia. The Applicant subsequently resold the properties at a substantial profit, but utilized a different realtor, in breach of the exclusive listing agreement he had with the Respondent, Vancouver Home Park Realty Ltd. During the course of their relationship, the Applicant agreed to pay Home Park a bonus of $300K if Home Park could assemble all three properties for him, which they did. At the conclusion of the transactions, however, the Applicant took the position the Respondents had committed several significant breaches of fiduciary duty owed to him, and sued for recovery of the $300K bonus. Home Park sued for recovery of the commission owed pursuant to the exclusive listing agreement. The trial judge dismissed the Applicant’s claim and allowed the claim of Home Park. The B.C.C.A. dismissed the Applicant’s subsequent appeal. "The motion to join two Court of Appeal of British Columbia files in a single application for leave to appeal is granted. The application for leave to dismissed with costs."

Real Property: Public Access to Lakes

Nicola Valley Fish and Game Club v. Douglas Lake Cattle Company, 2021 BCCA 99 (39628)
Nicola Valley Fish and Game Club applied for an order in part declaring the public has access to two lakes contained within the boundaries of lands owned and operated as a ranch by Douglas Lake Cattle Company. The trial judge held the public has access to both lakes. The B.C.C.A. allowed an appeal and held Douglas Lake Cattle Company may prohibit the public from crossing its property to access the lakes. "The application for leave to dismissed with costs."

Trademarks: Infringement; Passing Off

Travelway Group International Inc. v. Group III International Ltd., et al., 2020 FCA 210 (39576)
The Respondents, Group III International Ltd., Holiday Group Inc. and Wenger S.A. (collectively, “Wenger”) applied for relief under the Trademarks Act against the Applicant, Travelway Group International Inc. (“Travelway”), for both infringement and passing off of Wenger’s registered trademarks. The Federal Court dismissed Wenger’s application. The Fed. C.A. allowed Wenger’s appeal. It concluded Wenger had established both infringement and passing off; granted relief, including a permanent injunction against Travelway’s use of its marks, and it referred two further remedial issues to the Federal Court for further adjudication. The Fed. Court ordered the expungement of Travelway’s registered trademarks but dismissed Wenger’s claim for monetary compensation. The Fed. C.A. allowed Wenger’s appeal for monetary compensation. It agreed with the Federal Court the use of a registered trademark does not give rise to liability in damages or an accounting of profits for infringement for the period prior to a trademark being struck from the register. However, in relation to passing off, the FCA concluded, as between the parties, there was a finding of passing off, and monetary compensation should therefore be awarded. It also concluded the registration of a trademark is a complete defence to passing off and the portions of its prior decision finding passing off in this case should not be followed as authority in future cases. "The application for leave to dismissed with costs."

Appellate Extras

Featured Court of Appeal Decision

We also track what’s happening in the appellate world before it gets to Canada’s highest court. Below is this week’s featured Court of Appeal decision from our Appellate Monthly newsletter.

Test for Intervenor Status; Public Interest Standing

Justice Centre for Constitutional Freedoms v Alberta, 2021 ABCA 295

Key Words: Interventions; Rules 14.37(2)(e) and 14.58 of the Alberta Rules of Court, AR 124/2010.

Read our summary here

Upcoming SCC Hearings

For a full list of upcoming Supreme Court of Canada hearings and a quick look at what they’re about, check out our annotated appeal schedule

Last Word

A Special Toast to the Bride & Groom

Was at a special wedding in the country on Sat.; on a farm.

For Maddie and Sam (Maddie daughter of good friend Chris Froggatt).

Quiet, classy, dignified wedding. So are Maddie and Sam.

Speeches were all focussed, heartfelt, short.

Maddie’s grandfather “Poppa Fraser” gave the Toast to the Bride and Groom. I have heard none better.

Not just a gentle exhortation to Maddie and Sam, but a gentle reminder to us all, to treasure, to respect, to remember what is important in relationships.

With permission, here is that toast.

“May you see sun rise and set across our oceans east and west. You will have watched the Pacific challenge our coast and yet the Atlantic seems to kiss the land in the early morning prayer.

Morning and evening you are always twice blest.

Dearest Maddie and Sam, all day long the blessings flow.

Each time you look across the room,

it doesn’t matter if your gazes meet.

Most times a look will suffice.

You and your love will grow stronger with the passing of each year.

And time goes by in ever living strides,

some slow at first, then more quickening jumps,

as if each older year knows how to move.

Your diaries and letters will have marked the passing of each day,

you need but pull one up and every facet of activity can be recalled; every morsel of delight can be relived.

Think what a banquet of memories you will have gained.

You take your days gone past as one by one.

They flood upon your memories that flash within.

And to them scores and scores of pictures that when laid

side by side would stretch for miles and miles.

They now recall themselves in your mind’s eyes forever
captured to be drawn upon by your minds, forever.”

Thank you: David Fraser

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  • Tom Slade, former Editor-in-Chief of the Ottawa Law Review, journalism degree from Carleton University, and law degree from University of Ottawa.
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End Notes

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