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Thursday, August 2, 2012 | Issue No. 50

SupremeAdvocacyLett@r, Eugene Meehan Q.C.

In this Issue

Today:  5 Applications for Leave to Appeal.



 
 
 

1.   LEAVES TO APPEAL DISMISSED (5)

CIVIL PROCEDURE: DIMISSALS FOR WANT OF PROSECUTION
CIVIL PROCEDURE IN QUEBEC: DISCONTINUANCES
CLASS ACTIONS: LIMITATIONS
CRIMINAL LAW: HOMICIDE
FAMILY LAW: CHILD PROTECTION

2.    S.C.C. FACTA WE CAN SEND YOU

3.    C.A. DECISION OF THE WEEK

4.    CURRENT COURT SESSION

5.    NEXT COURT SESSION

6.    NEXT MOTION DAY

7.    WHO WE ARE, WHAT WE DO

8.   COURT OF APPEAL WEBSITES

9.   S.C.C. APPEALS BEING ARGUED SOON, & LIVESTREAM HYPERLINKS

10.   LAST WORD: CAUSATION IN TORTS

11.   WEBSITE OF THE WEEK: TORTS COMMENTARY ONLINE

12.  NEWSLETTER FOLLOW-UP: BOOKS

13.   END STUFF



LEAVES TO APPEAL DISMISSED (5)Back to top

CIVIL PROCEDURE: DIMISSALS FOR WANT OF PROSECUTION
Mr. Keremelevski commenced two actions for damages after he was involved in two motor vehicle accidents in 2005. In 2008, when Mr. Keremelevski was scheduled to be at a case management conference, he was involved in an altercation at the courthouse that resulted in his spending the day in jail and an order was made requiring him to appear before a judge to explain his conduct and to give a formal undertaking to conduct himself appropriately.  He sought to have his actions transferred from New Westminister to the Vancouver courthouse but his motion was dismissed.  In 2010, the Respondents had the actions dismissed for want of prosecution.  Mr. Keremelevski brought four applications before the court in Vancouver, which were dismissed. The C.A. dismissed the appeal.
Ivanco Keremelevski v. Insurance Corporation of British Columbia, et al. (B.C.C.A., Feb. 20, 2012) (34789) "The motion for indigent status is dismissed. The application for leave to appeal... is dismissed with costs.
 


CIVIL PROCEDURE IN QUEBEC: DISCONTINUANCES
On May 22, 2009, the Applicant Loc Nguyen filed a motion to institute proceedings in Quebec Superior Court against the Respondent Re/Max du Cartier inc. for $1 million in damages.  Mr. Nguyen did not inscribe his action for proof and hearing within the peremptory time limit set out in art. 110.1 of the Code of Civil Procedure, by November 25, 2009.  On September 9, 2010, more than nine months after the time limit for inscription for proof and hearing had expired, the Respondent, in accordance with arts. 264 and 274.3 C.C.P., inscribed for judgment for deemed discontinuance with regard to costs.  On September 30, 2010, Julie Bégin, assistant clerk of the Quebec Superior Court, rendered judgment on the inscription for judgment for deemed discontinuance.  On October 14, 2010, the Respondent served on the Applicant a bill of costs for $10,474.05.  On November 19, 2010, Lorie Lamouche, assistant clerk of the Quebec Superior Court, taxed the bill of costs at $10,364.30.  On December 9, 2010, the Respondent served a formal notice on the Applicant calling upon it to pay the amount shown in the taxed bill of costs.  On May 26, 2011, the Applicant sent the Respondent’s lawyers a bank draft for $5,474.05 and a cheque for $5,000 to pay the taxed bill of costs.  On October 21, 2011, the Applicant served on the Respondent a motion for leave to appeal out of time from the judgment rendered more than a year earlier by Julie Bégin, assistant clerk of the Quebec Superior Court.  On October 22, 2011, Doyon J.A. of the Quebec C.A. refused to place the Applicant’s motion on the roll for October 24, 2011.  On February 16, 2011, the Applicant served on the Respondent a second motion for leave to appeal out of time from the judgment of September 30, 2010, which was dismissed.
Loc Nguyen v. Re/Max du Cartier Inc. (Que. C.A., Feb. 27, 2012) (34736) "The application for leave to appeal is dismissed with costs."
Link to C.A. decision

 
CLASS ACTIONS: LIMITATIONS
The Applicant commenced a proposed class action alleging misrepresentations by the Respondents that adversely affected the value of shares of Timminco Limited in the secondary market. These misrepresentations were alleged to have commenced on March 17, 2008. The statement of claim indicates that the Applicant will seek an order granting leave to assert the statutory cause of action for misrepresentation provided by s. 138.3 of Part XXIII.1 of the Ontario Securities Act. By the end of February 2011, the Applicant had not yet sought that leave and, as a result, was faced with a limitation problem.  Part XXIII.1 imposes a limitation period of three years from the misrepresentation for the commencement of an action under this Part. It also provides that such an action can be commenced only with leave. Faced with this, the Applicant moved for an order declaring that this limitation period is suspended pursuant to s. 28 of the Class Proceedings Act. The motion judge granted the Applicant’s motion, but C.A. allowed the Respondents’ appeal.
Ravinder Kumar Sharma v. Timminco Limited, et al. (Ont. C.A., Feb. 16, 2012) (34774) "The motion to strike out the affidavits is granted with costs to the respondents Timminco Limited, Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield and Mickey M. Yaksich. The application for leave to appeal... is dismissed with costs."
Link to C.A. decision

 
CRIMINAL LAW: HOMICIDE
On January 14, 2008, a fire broke out in the Saint Rémi de Tingwick municipal office attached to the village church.  After the fire was put out, the body of Renée Vaudreuil, the municipality’s director general, was found. The crime scene analysis and pathology report showed that Ms. Vaudreuil had been shot twice with a .410 calibre firearm and had also been struck with a blunt object. The evidence was purely circumstantial and was based on testimony concerning the presence of the Applicant, Mr. Godbout, near the municipal office around the time of the crime and concerning his possible motive. On the morning of the murder, Mr. Godbout’s appeal from a judgment in favour of the municipality had been dismissed. Mr. Godbout categorically denied killing Ms. Vaudreuil. However, he admitted going by the municipal office on the day of the murder but said that he had not entered the office. He also claimed that he did not possess and had never possessed a firearm. He was arrested at his home the day after the murder. The police searched his home but found no evidence relevant to their investigation. The same was true at the scene of the crime, where no physical evidence connecting Mr. Godbout to the crime was found. The Applicant was convicted with first degree murder, and the C.A. dismissed the appeal.
Robert Godbout v. R.  (Que. C.A. Jan. 9, 2012) (34704) "The application for leave to appeal... is dismissed without costs."
Link to C.A. decision

 
FAMILY LAW: CHILD PROTECTION
There is a publication ban in this case, a publication ban on the name of the party, and the S.C.C. file contains information not available for inspection by the public, in the context of children removed as being in need of protective intervention.
L.P. v. Director of Child, Youth and Family Services, Province of Newfoundland and Labrador (N.L. C.A., Sept. 21, 2011) (34850) "The motion for an extension of time to serve and file the application for leave to appeal is granted.  The application for leave to appeal... is dismissed without costs."
Link to C.A. decision



S.C.C. FACTA WE CAN SEND YOUBack to top

The following are S.C.C. facta we have readily available this week – with permission of counsel as indicated below – whom we thank for their courtesy. (These available factums are written in French only. The English translations are not available – time to get out your Bescherelle French Irregular Verbs).

Please request any factum/facta you wish by quoting the five-digit numerical code (in brackets).

There is no charge – happy to help (as are the counsel noted below) as a courtesy to the profession.

Copyright: What is a “Sound Recording”
Re: Sound v. Motion Picture Theatre Associations of Canada, et al. (Federal Court) (34210)

Factum of the Respondent (Marek Nitoslawski, Fasken Martineau DuMoulin LLP, Montréal)
 
Criminal: (Military) Sentencing
Her Majesty the Queen v. Ex-Pte St-Onge, D. (Federal Court) (33864)

Factum of the Respondent (François Baril, Gowling Lafleur Henderson LLP, Ottawa)
 
Criminal: Intoxication; Insanity
Tommy Bouchard-Lebrun v. Her Majesty the Queen (Quebec) (33687)

Factum of the Respondent (Guy Loisel, Poursuites criminelles et pénales du Québec, Sept-Iles)
 

C.A. DECISION OF THE WEEKBack to top

  • Case Name: Slade-McLellan v. Brophy, 2012 NSCA 80
  • Keywords: family law; custody; access; mobility; material change in circumstances
  • Synopsis: The appellant mother applied to vary access so she could move to Alberta to be with her partner. She testified she would not move if her application was dismissed. The trial judge dismissed her mobility application and went on to review the custody arrangement. He ordered it be varied with the primary care of the child being changed from her to the father.
  • Importance: The issue on appeal was whether the trial judge could go on to review the custody arrangement after having dismissed the mobility application. The C.A. found that simply bringing the mobility application resulted in the “material change in circumstances” threshold being crossed and “it was open for the court to review the custodial arrangement, even though the evidence was that she would not move without the child.” The judge could consider various orders and it “was not necessary for him to find an additional material change in order to alter the custody arrangement.”
  • Counsel for the Appellant: Lloyd Berliner and Cassandra Armsworthy (law student), Patterson Law, Truro, Nova Scotia
  • Counsel for the Respondent: Roseanne Skoke, The Law Offices of Skoke & Company, Stellarton, Nova Scotia
  • Hyperlink: http://www.courts.ns.ca/decisions_recent/documents/2012nsca80_mtd.pdf

CURRENT COURT SESSIONBack to top

The court is not in session.


NEXT COURT SESSIONBack to top
 
Tuesday October 9, 2012 – Monday December 31, 2012
 


NEXT MOTION DAYBack to top
 
  Tuesday, October 9, 2012
 


WHO WE ARE, WHAT WE DOBack to top
 
Strategy/drafting/revising – count on us when you’re going to the Supreme Court. We specialize in:

  • Leaves To Appeal
  • Applications to Intervene
  • Appeals
  • All Interlocutory Applications
  • Stays of Procedure and Execution
  • Constitutional Questions
  • Technical Compliance with Supreme Court Rules
  • Overall Strategic Advice
  • Write/ghostwrite leave to appeal and appeal factums for lawyer-clients: Marie-France has a Masters from Oxford and Doctorate from Berkeley; Tom a journalism degree from Carleton and law degree from Ottawa; and Eugene a Masters and Doctorate from McGill.

We know the Supreme Court — we’ve worked there, we argue there.


COURT OF APPEAL WEBSITESBack to top

For your quick access, below is a list of available C.A. websites, all are hyperlinked. Many Court of Appeal decisions from these jurisdictions are available at the more generalized CanLII site:

Alberta: www.albertacourts.ab.ca
British Columbia: www.courts.gov.bc.ca
Manitoba: www.manitobacourts.mb.ca/
New Brunswick: www.gnb.ca/cour/03COA1/index-e.asp
Newfoundland: www.court.nl.ca/
Nova Scotia: www.courts.ns.ca/Appeals/index_ca.htm
Ontario: www.ontariocourts.on.ca/coa/en/
Prince Edward Island: www.gov.pe.ca/courts/
Quebec: www.jugements.qc.ca/
Saskatchewan: www.sasklawcourts.ca
Nunavut: www.nucj.ca/index.htm
Northwest Territories: www.justice.gov.nt.ca/dbtw-wpd/nwtjqbe.htm
Yukon: www.yukoncourts.ca
Federal Court of Appeal: decisions.fca-caf.gc.ca/en/index.html
Court Martial Appeal Court: www.cmac-cacm.ca/index_e.html



S.C.C. APPEALS BEING ARGUED SOON, & LIVESTREAM HYPERLINKSBack to top


No appeals are being heard during the summer session.


LAST WORD: CAUSATION IN TORTS   Back to top

  1. Two colleagues in the profession and I spoke at the annual meeting of the American Association of Justice (Canadian Caucus) last weekend in Chicago – Clint Docken, Q.C., (Docken & Company, Calgary AB) and Derek Miura (Derek K. Miura Law Corporation, Vancouver BC).
  2. Each of us were giving an update on personal injury SCC decisions over the last couple of years, but when the Clements v. Clements decision came out on June 29, 2012 that changed everything, and each of us focused on what the law now is on causation – a fundamentally big issue of course.
  3. As a courtesy I attach:
  • the paper submitted for the convention materials
  • my speaking notes (that I got typed up when I got back to Ottawa on Monday).
  1. As a further courtesy, both Clint Docken, Q.C. and Derek Miura kindly consented to letting you have access to their  power point presentations.
  2. Each of the above are hyperlinked, as indicated below.

Eugene Meehan, Q.C.: Paper

Eugene Meehan, Q.C.: Speaking Notes

Clint Docken, Q.C.: Power Point Presentation

Derek Miura: Power Point Presentation

      6.  And here's the S.C.C. hyperlink for Clements:

 

THANK YOU:               Clint Docken, Q.C.
                                    Docken & Company (Calgary AB)
                                    cgd@Docken.com

                                    Derek Miura
                                    Derek K. Miura Law Corporation (Vancouver BC)
                                    dkmiura@telus.net


WEBSITE OF THE WEEK: TORTS COMMENTARY ONLINEBack to top

Two websites that feature regular commentary on Canadian tort law cases:

1.       B.C. lawyer Erik Magraken’s blog
2.       Osgoode Hall Law School’s The Court



NEWSLETTER FOLLOW-UP: BOOKSBack to top

"Hi Eugene,
 
As you may know (can't remember if ever mentioned this) but I am a bit of book collector.  I find many lawyers are book-lovers of one form or the other (law is probaby one of the few professions where being a bookish odd-ball might come in handy)
 
Anyway, Larry McMurtry, the author of  Lonesome Dove and many other wonderful books, has been for many years a book collector and a book-seller located in small town Texas.  He has now established a giant (and that is no exaggeration)  book auction in Texas in August to liquidate a goodly portion of his several hundred thousand books.  This is truly a once-in-a-life-time event.  Somewhat unfortunately, it is probably more geared to those in the book business that the run-of-the-mill book lover such as me.  However, it is such a unique event I am tempted to try and attend.
 
Anyway, here is the link to the auction site.  Makes interesting reading even if one will never come within a thousand miles of the event.

Warning that each shelf-lot for sale will include approximately 150-200 books and, while auctions are unpredictable, that prices will be fairly significant as these are mainly collectable books, to one degree or another.
My understanding is that the "viewing" process starts on Friday August 3rd in Archer City Texas (given over a 1,000 shelf-lots for sale, any one seriously considering bidding on a shelf-lot would need a day or two at least to determine which of the numerous lots he/she wants to pay particular attention to). The actual auction in Archer City is a two day event: Friday August 10th and Saturday August 11th."
 
Rick


THANK YOU:    Richard Bennett
                        Barristers & Solicitors B.C.
                        outskirtsca@yahoo.ca


END STUFFBack to top

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