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Supreme Advocacy
Issue #11
Thurs., Feb. 14, 2019
SCC Today: 1 Appeal & 24 Leaves 

Supreme One-Liners

Appeal


R. v. Jarvis, 2019 SCC 10 (37833)
Teacher's secret videos of students breach privacy, constitute criminal voyeurism.

Leaves to Appeal


R. v. Friesen, 2018 MBCA 69 (38300)
Are the sentences for the sexual offences herein appropriate.

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Appeal 
 

Criminal Law: Voyeurism; Reasonable Expectation of Privacy

R. v. Jarvis, 2019 SCC 10 (37833)
 

"The accused was an English teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused.


The accused was charged with voyeurism under s. 162(1)  (c) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose. At trial, the accused admitted he had surreptitiously made the video recordings. As a result, only two questions remained: whether the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, and whether the accused made the recordings for a sexual purpose. While the trial judge answered the first question in the affirmative, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose. The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy. The Crown appeals to the Court as of right on the issue of whether the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy."


The S.C.C. (9:0) allowed the appeal and entered a conviction.

Chief Justice Wagner wrote as follows (at paras. 5-6, 29-31, 65, 75-76, 87-90, 92):

"...circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1)   of the Criminal Code   are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. To determine whether a person had a reasonable expectation of privacy in this sense, a court must consider the entire context in which the observation or recording took place. The list of considerations that may be relevant to this inquiry is not closed. However, in any given case, these considerations may include the location where the observation or recording occurred; the nature of the impugned conduct, that is, whether it consisted of observation or recording; the awareness or consent of the person who was observed or recorded; the manner in which the observation or recording was done; the subject matter or content of the observation or recording; any rules, regulations or policies that governed the observation or recording in question; the relationship between the parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded.


...there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly their breasts — and a fortiori not to be the subject of such videos recorded for a sexual purpose by a teacher. I therefore conclude that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1)   of the Criminal Code. I would allow the appeal and enter a conviction.


...
 

The following non-exhaustive list of considerations may assist a court in determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy:

  • (1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
     
  • (2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. The heightened impact of recording on privacy has been recognized by this Court in other contexts, as will be discussed further at para. 62 of these reasons.
     
  • (3) Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recording may inform the reasonable expectation of privacy inquiry at para. 33 of these reasons.
     
  • (4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. The potential impact of evolving technologies on privacy has been recognized by the courts, as I will discuss further at para. 63 of these reasons.
     
  • (5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body. This Court has recognized, in other contexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in that information. As I will discuss further at paras. 65-67 of these reasons, this principle is relevant in the present context as well.
     
  • (6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations or policies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.
     
  • (7) The relationship between the person who was observed or recorded and the person who did the observing or recording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
     
  • (8) The purpose for which the observation or recording was done. I will explain why this may be a relevant consideration at paras. 31-32 of these reasons.
     
  • (9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or a young person may be relevant in some contexts.

I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who was observed or recorded had a reasonable expectation of privacy is not exhaustive. Nor will every consideration listed above be relevant in every case. For example, recordings made using a camera hidden inside a washroom will breach reasonable expectations of privacy regardless of the purpose for which they are made, the age of the person recorded, or the relationship between the person recorded and the person who did the recording. In another context, however, these latter considerations may play a more significant role. The inquiry is a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances.


I pause here to note that there is nothing incongruous about considering the purpose of observation or recording in determining whether it was done in breach of a reasonable expectation of privacy. This Court has recognized, in other contexts, that a person’s reasonable expectation of privacy with respect to information about the person will vary depending on the purpose for which the information is collected: see R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 429-32, per La Forest J.; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 75. This conclusion also flows from a common sense understanding of privacy expectations. For example, if a patient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing the diagnostic procedure. However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise — the patient’s privacy will undeniably be violated.

...

As this Court has recognized, our society places a high value on personal privacy — that is, privacy with respect to our bodies, including visual access to our bodies: see Tessling, at para. 21; R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 32; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 83, 89-90, 98-99 and 106. While all aspects of privacy — both from the state and from other individuals — serve to foster the values of dignity, integrity and autonomy in our society, the connection between personal privacy and human dignity is especially palpable: see Dyment, at pp. 427-29, per La Forest J.

...

 

The manner in which the videos were recorded — using hidden camera technology that allowed for sustained recording at close range without the subject being aware of it — is also a relevant factor in the case at bar. It undermines Mr. Jarvis’ argument that the students could not have had a reasonable expectation that he would not record them at school because they were aware that there were security cameras in various locations inside and outside the school.  This argument ignores the fact that not all forms of recording are equally intrusive. In particular, there are profound differences between the effect on privacy resulting from the school’s security cameras and that resulting from Mr. Jarvis’ recordings, and the students’ expectation that they would be recorded by the school’s security cameras tells us little about their privacy expectations with respect to the recording done by Mr. Jarvis.


The security cameras at the school were mounted to the walls near the ceiling inside the building and also to the outside of the building. They did not record audio; the direction they pointed could not be manipulated by teachers; teachers could not access or copy the recorded footage for their personal use; and the purpose of the cameras was to contribute to a safe and secure learning environment for students. Signs at the school indicated that the school halls and grounds were under 24-hour camera surveillance: Agreed Statement of Facts, A.R., vol. 7, at p. 148. Given ordinary expectations regarding video surveillance in places such as schools, the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera, let alone by a teacher for the teacher’s purely private purposes (an issue to which I will return later in these reasons). In part due to the technology used to make them, the videos made by Mr. Jarvis are far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment.

...
 

Reasonable adults are particularly solicitous of the privacy interests of children and young persons in relation to observation and especially visual recording. One reason for this is that reasonable adults recognize that children and young persons are often not in a position to protect their own privacy interests against intrusion. For example, children are particularly at risk with respect to unwanted recording because they have limited choice about which spaces they occupy, limited means to exclude others from those spaces, and limited choice about what parts of their bodies may be exposed in those spaces. Children are also expected to be obedient to adults and follow their instructions, and they place a high degree of trust in adults and authority figures, such as their parents and teachers. And in a situation where an adult would be alert to the potential for intrusions on her privacy as a result of observation or recording, a child may be completely unsuspecting, putting her faith in the adults around her and failing to take evasive action, even if evasive action were otherwise possible.


These considerations are applicable to our assessment of the students’ expectations of privacy in the case at bar. The fact that all of the students were young persons means that they would have reasonably expected the adults around them to be particularly cautious about not intruding on their privacy, including by not targeting them for visual recording without their permission. Therefore, the fact that all of the students recorded were young persons strengthens the argument that they could reasonably expect not to be recorded in the manner they were.


In today’s society, the ubiquity of visual recording technology and its use for a variety of purposes mean that individuals reasonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, individuals expect that they will be captured by video surveillance in certain locations, that they may be captured incidentally in the background of someone else’s photograph or video, that they may be recorded as part of a cityscape, or that they may be recorded by the news media at the scene of a developing news story. In the school context, a student would expect that she might be captured incidentally in the background of another student’s video, photographed by the yearbook photographer in a class setting, or videotaped by a teammate’s parent while playing on the rugby team.


That being said, individuals going about their day-to-day activities — whether attending school, going to work, taking public transit or engaging in leisure pursuits — also reasonably expect not to be the subject of targeted recording focused on their intimate body parts (whether clothed or unclothed) without their consent. A student attending class, walking down a school hallway or speaking to her teacher certainly expects that she will not be singled out by the teacher and made the subject of a secretive, minutes-long recording or series of recordings focusing on her body. The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students’ reasonable expectations of privacy. Indeed, given the content of the videos recorded by Mr. Jarvis and the fact that they were recorded without the students’ consent, I would likely have reached the same conclusion even if they had been made by a stranger on a public street rather than by a teacher at school in breach of a school policy.

...

It is not in issue in this Court that the Crown has established the other elements of the offence with which Mr. Jarvis was charged. Accordingly, I would allow the appeal, enter a conviction, and remit the matter for sentencing."


Full Decision
 

Leaves to Appeal

Granted

  1. Criminal Law: Sexual Offences Sentencing

Dismissed

  1. Civil Procedure: Contempt; Security For Costs 
  2. Civil Procedure: Dismissal For Want Of Prosecution
  3. Civil Procedure: Dismissal For Want Of Prosecution
  4. Civil Procedure: Foreign Judgments
  5. Civil Procedure: Vexatious Litigants
  6. Courts: Jurisdiction
  7. Customs & Excise: Time Extensions To Appeal
  8. Criminal Law: Breach of Bail Conditions
  9. Criminal Law: Contempt; Intoxication
  10. Criminal Law: Malicious Prosecution
  11. Criminal Law: Search & Seizure
  12. Criminal Law: Wiretaps & Surveillance Authorization
  13. Criminal Law: Wiretaps & Surveillance Authorization
  14. Family Law: Recognition of  Foreign Annulments
  15. Health Law: Hospital Privileges
  16. Labour Law In Québec: Grievance Settlement
  17. Labour Law: Grievance Authorization
  18. Labour Law: Representative Actions; Jurisdiction
  19. Labour Law: Representative Actions; Jurisdiction
  20. Police: Oversight
  21. Tax: New Housing Rebates
  22. Tax: Property “Situate on a Reserve”
  23. Workers’ Comp: Liability Apportionment
     

Granted (1)
 

Criminal Law: Sexual Offences Sentencing 

R. v. Friesen, 2018 MBCA 69 (38300)
Mr. Friesen met the mother through an online dating website. The mother brought Mr. Friesen to her home. On the date of the offence, the mother’s children were sleeping and were being cared for by the mother’s friend in the mother’s house. Mr. Friesen asked the mother to bring the child into the bedroom. The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. Mr. Friesen demanded the mother retrieve the child and threatened her if she did not comply with his demand.  Mr. Friesen entered guilty pleas to sexual interference and attempted extortion. The sentencing judge imposed a sentence of six years’ incarceration concurrent on both charges. The C.A. granted leave to appeal sentence. The C.A. allowed the appeal and reduced the sentence from six to four and one-half years’ incarceration for the sexual interference conviction and reduced the sentence from six years to 18 months incarceration concurrent for the attempted extortion conviction. "The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal...is granted."
 

Dismissed (23)

 

Civil Procedure: Contempt; Security For Costs  

Nowack v. 2363523 Ontario Inc., 2018 ONCA 414 (38236) 
In 2015, default judgment in a civil action for recovery of monies lost to fraud was issued to 2363523 Ontario Inc., with an order requiring Mr. Nowack to account. Mr. Nowack did not account. On June 30, 2017, Dunphy J. convicted Mr. Nowack for contempt of court. He denied requests by Mr. Nowack for a trial and to cross-examine an affiant. Mr. Nowack filed a notice of appeal.  2363523 Ontario Inc. brought a motion seeking security for the costs of the appeal and an order for payment of outstanding cost orders. Hoy A.C.J. ordered Mr. Nowack to post $10,000 security. Mr. Nowack applied for review by a panel of the C.A. A panel dismissed the application for review. "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 with costs."
 

Civil Procedure: Dismissal For Want Of Prosecution 

Riepe v. Global Industrial Services Canada Inc., 2018 BCCA 249 (38284)
In 2009, the Applicant Rudy Riepe sued the Respondents for royalties relating to a sale of mineral claims. The Respondents defended on the basis Mr. Riepe had breached the agreement for sale by selling the mineral claims to another company and they counter-claimed for the amount spent to buy out the other company.  In 2013 the Respondents brought a motion to dismiss the claim for want of prosecution. The motion was dismissed.  On appeal the Respondents were permitted to adduce new evidence in the form of a medical opinion Mr. Riepe, by then represented by a litigation guardian, was medically unable to testify or take part in the proceedings. The appeal was allowed, the order set aside and action dismissed for want of prosecution. "The application for leave to appeal...is dismissed with costs."
 

Civil Procedure: Dismissal For Want Of Prosecution 

Sir v. Fleury, 2018 SKCA (38211)
In May 2015, Ms. Sir commenced a statement of claim in Small Claims for damages she suffered when she intervened in a dog fight between her dog and a dog owned by the Respondent that occurred when she was visiting Canada from Germany in 2014. It’s a dog-eat-dog world. Both parties attended pre-trial conferences in September and November, 2015.  The trial was set for April 12, 2016.  It was adjourned as Ms. Sir was unable to attend. Two more adjournments followed at the request of Ms. Sir, which were opposed by Mr. Fleury.  Ms. Sir was unable to attend any of the trial dates because she was unable to enter Canada.  The last trial date was set for April 4, 2017.  Ms. Sir requested an adjournment which was again opposed.  The trial judge dismissed her application for an adjournment and dismissed her action for want of prosecution. Her appeal from that decision was dismissed in the Court of Queen’s Bench. Her application for leave to appeal from that decision was also dismissed. "The motion for an extension of time to serve and file the application for leave to appeal...is dismissed."
 

Civil Procedure: Foreign Judgments 

Dill v. Kriegman, 2018 BCCA 86 (38093)
This Leave concerns an application brought by the Applicant to set aside orders concerning a foreign judgment registered in the B.C.S.C. ex parte by the Respondent Bruce P. Kriegman, as a Chapter 11 trustee for LLS America. Mr. Kriegman registered the judgment through the desk order process pursuant to the Court Order Enforcement Act. Part 2 permits ex parte registration of a judgment from a court in a reciprocating state on a desk order basis in certain circumstances.  The B.C.S.C. ordered the registration order be set aside; as well as the extension order extending the time to serve the order. The B.C.C.A. allowed the appeal and registered the judgment and extension order to serve against the Applicant. "The application for leave to appeal... is dismissed with costs."
 

Civil Procedure: Vexatious Litigants 

Re Thompson, 2018 ABCA 111 (38204)
In the course of prior legal proceedings in which Mr. Thompson sued his Union, Mr. Thompson was declared to be a vexatious litigant by the Alberta Court of Queen’s Bench. Mr. Thompson was also made subject to court access restrictions, prohibiting him from commencing any new proceeding without first obtaining leave from the court.  Mr. Thompson attempted to file a new originating application in the Court of Queen’s Bench.  Mr. Thompson’s application for leave to file the new proceeding was dismissed, as it failed to provide necessary information concerning his new claim, failed to establish reasonable grounds for the consideration of his new application, and failed to demonstrate the new proposed application was not an abuse of court processes. A single judge of the Alta. C.A. then denied Mr. Thompson permission to appeal the decision refusing his new proposed application, citing a lack of jurisdiction to grant such permission under the Alberta Rules of Court. "The application for leave to appeal...is dismissed with no order as to costs."
 

Courts: Jurisdiction 

Sun v. Sun, 2018 ABCA 223 (38227)
The Applicant applied to the court for an order compelling his sister and others to join the Church of Jesus Christ of the Latter Day Saints. The application judge determined the court had no jurisdiction to make the order requested. The C.A. refused to restore the Applicant’s appeal. The C.A. refused the Applicant’s request for permission to submit the appeal to a three-judge panel. "The application for leave to appeal...is dismissed with no order as to costs."
 

Customs & Excise: Time Extensions To Appeal 

Zhang v. R., 2018 QCCA 497 (38353)
The Applicant, Mr. Zhang, was charged and sentenced by way of a judgment rendered orally by the Court of Québec with a summary conviction offence under s. 160 of the Customs Act in April 2017 for which was imposed a $2000 fine made payable within a year. In the Fall of 2017, Mr. Zhang sought an extension of time before the Superior Court to file a Notice of Appeal. On application of the criteria set out by the Qué. C.A. in R. v. Lamontagne (1994), 95 C.C.C. (3d) 277, the Superior Court found Mr. Zhang did not show (1) an intention to appeal while the right of appeal existed; (2) arguable grounds of appeal; or (3) reasonable diligence in seeking to exercise the right to appeal within the prescribed time. The C.A. dismissed Mr. Zhang’s application for leave to appeal. The court found Mr. Zhang’s application raised neither a question of law nor special circumstances which would otherwise justify its intervention. It further determined the court below did not err in applying the factors set out in Lamontagne which are well-established and uncontroversial. "The application for leave to appeal...is dismissed without costs."
 

Criminal Law: Breach of Bail Conditions 

Roberge v. R., 2018 QCCA 885 (38271)
The Applicant, Mr. Roberge, was convicted for having breached a condition of his release, for having been at large during a curfew imposed for an unrelated matter. A police officer had identified him when at large, in part because of a tattoo on this left shoulder. He did not testify in his own defence. His conviction appeal was dismissed, as was his motion for leave to appeal to the C.A. "The application for leave to appeal...is dismissed."
 

Criminal Law: Contempt; Intoxication 

Pelletier v. R., 2018 QCCA (38130)
The Applicant, Mr. Pelletier, was convicted of contempt of court for presenting himself in a state of intoxication in open court earlier that month as witnessed by the trial judge. The C.A. dismissed the appeal. "The application for leave to appeal from the judgment of the Court of Appeal of Quebec (Montréal)...is dismissed."

 

Criminal Law: Malicious Prosecution 
J.T. v. M.C.B., 2018 QCCA 652 (38168)
There is a publication ban in this case, and a publication ban on the party, in the context of alleged indecent assault against a younger brother, resulting in a civil case of negligence and malicious prosecution. "The application for leave to appeal...is dismissed without costs."
 

Criminal Law: Search & Seizure 

Beaumont v. R., 2018 BCCA 342 (38288)
The Applicant, Mr. Beaumont, was convicted of production of marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act. A search of his residence under a warrant revealed there were 3317 plants growing there, while medical marihuana licences for the residence allowed 108. Mr. Beaumont appealed his conviction, arguing the judge erred in failing to set the search warrant aside. He contended the drafting of paragraphs of the information to obtain (ITO) by someone other than the officer who swore the document was improper. He also maintained the material in the ITO was insufficient to sustain a warrant. The C.A. dismissed the appeal. "The application for leave to appeal...is dismissed."
 

Criminal Law: Wiretaps & Surveillance Authorization 

Banayos and Banayos v. R., 2018 MBCA 86 (38296)
The Police conducted a large investigation of drug trafficking which resulted in 23 accused being charged with various offences, including Carol Banayos. The bulk of the Crown’s evidence was collected pursuant to judicial authorisations for wiretaps and video surveillance issued.  A motions judge dismissed motions brought by Carol Banayos and others challenging the authorisations. Carol Banayos was convicted for conspiracy to possess proceeds of crime, possessing proceeds of crime, conspiracy to launder proceeds of crime, and laundering proceeds of crime. The C.A. dismissed an appeal from the convictions. "It is not necessary to consider the motion for an extension of time to serve and file the application for leave to appeal. The application for leave to appeal...is dismissed."
 

Criminal Law: Wiretaps & Surveillance Authorization 

Banayos and Banayos v. R., 2018 MBCA 86 (38389)
Similar summary to that immediately above. "The application for leave to appeal...is dismissed."
 

Family Law: Recognition of  Foreign Annulments 

Mills v. Mills, 2018 ABCA 195 (38235)
The parties met in Ms. Mills’ country of Cameroon where Mr. Mills, a Canadian, was working. At that time, Ms. Mills was separated from her first husband, and undertook to get a divorce when her relationship with Mr. Mills became serious. The couple apparently married in September 2011, in Cameroon. Thereafter, they moved to Calgary where they lived together as husband and wife and had two children. They separated in 2015. Mr. Mills sought an annulment of the marriage from a Cameroonian court. The annulment was granted on the basis that at the time of their wedding, Ms. Mills was already married, as her divorce from her previous husband had not been finalized. Mr. Mills applied to have the Cameroonian declaration of annulment recognized and enforced in Alberta. Ms. Mills claimed the nullity judgment was granted in Cameroon as a result of a corrupt court process and should not be recognized in Alberta. The Court of Queen’s Bench allowed Mr. Mills’ application. It was satisfied Cameroon properly asserted jurisdiction over the annulment, the annulment in Cameroon was not obtained by fraud and it was not contrary to Canadian public policy. Ms. Mills’ appeal was dismissed. "The application for leave to appeal...is dismissed with costs."
 

Health Law: Hospital Privileges 

Young v. Central Health, 2018 NLCA 24 (38195) 
Dr. Young operated a family medicine practice at Springdale, Nfld. & Lab. from 2009 to 2014.  He was on the medical staff of Central Health during this time and had hospital privileges.  In April 2014, Dr. Young withdrew from medical practice after a complaint was filed he had been guilty of professional misconduct by engaging in an inappropriate consensual sexual relationship with one female patient and inappropriately kissing and hugging another.  In December 2015, the College of Physicians and Surgeons found Dr. Young guilty of professional misconduct and imposed a 19-month suspension, but accepted he had been suffering from an undiagnosed mental illness. Dr. Young then resumed his practice and applied to have his hospital privileges at Central Health reinstated. His application was denied. His application for judicial review of that decision was allowed and the matter was sent back for reconsideration. A second decision-maker again denied the privileges sought by Dr. Young on the basis he did not meet the credentialing criteria set out in the by-laws. Dr. Young applied for judicial review of that decision. His application was dismissed, as was his subsequent appeal. "The application for leave to appeal... is dismissed with costs."
 

Labour Law In Québec: Grievance Settlement 

Tabib v. Syndicat des professeures et professeurs du Collège Édouard Montpetit (SPPCEM), 2018 QCCA 432 (38397)
The Applicant Ms. Tabib filed a complaint with the Administrative Labour Tribunal against the Respondent union. She challenged the union’s contention a settlement had been reached in a grievance involving her former employer, the Respondent Collège. The Administrative Labour Tribunal found the fact that Ms. Tabib had not signed the settlement did not prevent it from being valid, and her complaint was therefore dismissed. In a second decision, the Tribunal dismissed an application for review of its previous decision. The Superior Court dismissed the application for judicial review of the Tribunal’s decisions. The C.A. dismissed Ms. Tabib’s motion for leave to appeal out of time from the Superior Court’s decision. The motion in revocation of that decision by the C.A. was also dismissed. "The application for leave to appeal...is dismissed."
 

Labour Law: Grievance Authorization 

Klos v. Canada (Attorney General), 2018 FCA 160 (38408) 
Mr. Klos referred a grievance on July 18, 2016, to what is now the Federal Public Sector Labour Relations and Employment Board against the Correctional Service of Canada. The file was closed because the grievance was found not to be a disciplinary matter but rather an interpretation grievance, for which the support of the bargaining union, the Union of Canadian Correctional Officers, is required under the Federal Public Sector Labour Relations Act. Mr. Klos did not have the support of his bargaining agent for the referral to adjudication.  Mr. Klos applied for judicial review of this decision before the Fed. C.A. The court granted the application and the referral to adjudication was remitted to the Board for redetermination. The Board found it did not have the jurisdiction to hear the July 18, 2016 grievance as per s. 209 of the Act. At the Fed. C.A., Mr. Klos sought judicial review of the decision of the Board. The court dismissed the application. "The request for a stay of execution of costs is dismissed. The application for leave to appeal...is dismissed with costs."
 
Labour Law: Representative Actions; Jurisdiction 
United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (38334) 
Quality Meat Packers Limited, Toronto Abattoirs Limited and Great Lakes Specialty Meats of Canada Inc. terminated all of their employees without notice or severance. All three companies were bankrupt. When it became apparent the companies would not be able to satisfy the claims of unsecured creditors, the terminated employees commenced two actions styled as representative actions claiming damages for wrongful dismissal and punitive damages on the basis of common employment, conspiracy and oppression. This action was filed on behalf of the companies’ 700 union employees about three months before the two-year limitations period expired. Before filing statements of defence, the Respondents brought two motions. The first alleged the action essentially related to the wrongful dismissal of unionized employees, and was therefore within the exclusive jurisdiction of the labour arbitrators and the Ontario Labour Relations Board. The second alleged, insofar as the action was brought in a representative capacity, the required representation order had not been obtained within the two-year limitation period, so, while the action was within time as it concerned the individual plaintiffs, personally, it was filed outside the limitation period as representative actions. Ontario Superior Court of Justice: Motion to stay granted; limitations motion to stay the representative component of action granted. The C.A. dismissed the appeal. "The application for leave to appeal...is dismissed with costs."
 

Labour Law: Representative Actions; Jurisdiction 

United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (38337) 
Similar summary to that immediately above. "The application for leave to appeal...is dismissed with costs."
 

Police: Oversight 

Asghar v. Office of the Independent Police Review Director, 2018 ONCA (38206)
The Applicant made a complaint before the Office of the Independent Police Review Director, alleging he was the victim of a multi-year organized crime operation established by the Canadian and U.S. governments and the Toronto Police Services. He claimed to have suffered harassment, assault, and interference with his professional and personal life at the hands of police, government agencies, and private citizens who were directed by organized crime. He requested that Director or any appropriate body undertake a properly resourced investigation using street squads and proper investigative tools to understand the organized crime involved. The Director declined to deal with the Applicant’s complaint. Mr. Asghar’s application for judicial review of that decision was dismissed. The C.A. dismissed his application for leave to appeal. "The application for leave to appeal...is dismissed with no order as to costs."
 

Tax: New Housing Rebates 

Cheema v. Canada, 2018 FCA 45 (38090)
The Minister of National Revenue reassessed Mr. Cheema to deny his application for a new housing rebate (“NHR”). The Minister took the position Mr. Cheema had not met the necessary preconditions for the NHR, as one of the co-purchasers, who was not related to Mr. Cheema, did not intend to occupy the property as his primary place of residence when the agreement of purchase and sale was signed and did not occupy the residence after closing, contrary to the requirements of ss. 254(2)(b) and (g) of the Excise Tax Act. On appeal to the Tax Court of Canada from the Minister’s reassessment, Mr. Cheema maintained the co-purchaser in question signed the agreement for the purpose of facilitating the mortgage financing, and acquired legal title on closing as a bare trustee for Mr. Cheema and his spouse as beneficial owners. As such, Mr. Cheema asserted, the co-purchaser was not a “particular individual” who was required to satisfy the occupancy conditions under the ETA in order for Mr. Cheema to qualify for the NHR. The Tax Court of Canada set aside the Minister’s reassessment and granted the rebate to Mr. Cheema. The Fed. C.A. allowed the Minister’s appeal and restored the reassessment. "The application for leave to appeal...is dismissed with costs."
 

Tax: Property “Situate on a Reserve” 

Bell v. Canada, 2018 FCA 91 (38222)
Ms. Bell owned 51 per cent of the shares of a company called Reel Steel and her husband, Mr. Bell, owned the balance of 49 per cent. Ms. Bell is a status Indian under the Indian Act. She was the president and the sole director of Reel Steel during the taxation years under appeal. Reel Steel installs rebar for construction projects which, during the relevant years, were large high rise and residential towers in the greater Vancouver and southern interior areas of B.C.  None of those customers was located on a reserve. The office of Reel Steel was located on the Capilano Indian Reservation #5 although Ms. Bell was not a member of the Capilano Indian Band. She performed most of her employment duties at the office of Reel Steel. Mr. Bell’s role, in addition to placing rebar alongside the other construction employees, was to manage the construction work. During the years in question, Ms. Bell was paid a bi-weekly salary for the employment duties she performed, in an amount roughly equal to that received by Mr. Bell. Ms. Bell was also paid bonuses in the taxation years under appeal that were approximately equal to 100 per cent of the net income of Reel Steel. Ms. Bell claimed exemption from taxation for her salary and bonuses under s. 87 of the Indian Act for personal property “situate on a reserve”. The Minister allowed the exemption claimed for her salary but disallowed the exemption claimed for the bonuses. Ms. Bell appealed that ruling. Tax Court of Canada: Minister upheld; Applicant’s bonuses not exempt from taxation. Fed. C.A.: appeal dismissed. "The application for leave to appeal...is dismissed with costs."
 

Workers’ Comp: Liability Apportionment 

McIver v. McIntyre, 2018 ABCA 151 (38170)
Mr. McIntyre left his vehicle at Calgary Propane to have its brakes repaired. Mr. Morgan, a mechanic employed at Calgary Propane, took the vehicle for a test drive, with Calgary Propane’s authority. While Mr. Morgan was driving the vehicle, it collided with a van operated by Mr. McIver, who sustained injuries. Both Mr. McIver and Mr. Morgan were operating the vehicles in the course and scope of their employment at the time of the collision. Both were subject to the protection of the Workers’ Compensation Act as was Calgary Propane, the employer of Mr. Morgan. Mr. McIver made a claim for benefits under the WCA, which was accepted by the WCB. Mr. McIver also brought an action against Mr. McIntyre. Under s 187 of the Traffic Safety Act the owner of a vehicle is deemed to be the employer of a person who drives the vehicle with his consent and causes loss. During the course of the lawsuit, a dispute arose between the parties over the effect of s 23(2) of the WCA on the extent of Mr. McIntyre’s liability for Mr. McIver’s loss. The trial judge held that liability could be apportioned between the vicariously liable owner of the vehicle and the vicariously liable employer of the negligent employee driver. She apportioned 100 per cent of the liability to the employer. Her decision was upheld on appeal. "The application for leave to appeal...is dismissed with costs."
 

Court of Appeal Decision of the Week

Dismissal: Long Delay/ Want of Prosecution


CaseDelver v Gladue, 2019 ABCA 54 (CanLII)

Keywords: MVA; Delay; Outcome; Rule 4.33 of the Alberta Rules of Court, Alta Reg 124/2010

Read Full Summary
 

Who We Are, How We Can Help

 

We're a boutique firm specializing in:

  • SCC advocacy and agency
  • ghostwriting factums at all appellate levels
  • preparing complex legal opinions.

The Team:

  • Eugene, former Executive Legal Officer to S.C.C., has a Masters, and Doctorate in Civil Law from McGill.
  • Marie-France is a former SCC law clerk and has a Masters from Oxford, and Doctorate in law from Berkeley.
  • Tom, former Editor-in-Chief of the Ottawa Law Review, has a journalism degree from Carleton and law degree from Ottawa.
  • Cory, has a Bachelor of Arts (Honours) degree from Queen’s and Juris Doctor from Ottawa.

Upcoming Appeals & Webcasts


The winter session of the Supreme Court of Canada commences January 14, 2019. The following appeals are being heard in February: 
  • February 12: Her Majesty the Queen v. C.J. (Manitoba) (Criminal) (As of Right) 38220
  • February 13: Kathleen Blanchard v. Her Majesty the Queen (Québec) (Criminal) (As of Right) 38258
  • February 14: Nelson Silva Demedeiros v. Her Majesty the Queen (Alberta) (Criminal) (As of Right) 38269
  • February 15: Devante George-Nurse v. Her Majesty the Queen (Ontario) (Criminal) (As of Right) 38217
  • February 19:  K.J.M. v. Her Majesty the Queen (Alberta) (Criminal) (As of Right) 38292
  • February 20: Ville de Montréal v. Octane Stratégie inc. (Québec) (Civil) (By Leave) 38066
  • February 20: Octane Stratégie inc. v. Richard Thériault, et al. (Québec) (Civil) (By Leave) 38073
  • February 21:  Her Majesty the Queen v. Albert Penunsi (Newfoundland & Labrador) (Criminal) (By Leave) 38004
  • February 22: Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme v. Carleton University (Québec) (Civil) (By Leave) 37893

Website of the Week

Say it With Humour


It's Valentine's Day today (yup, take this as your reminder)?

Here's some ideas for some non-conventional cards — humour is the best way to someone's heart?
 

Last Word

Valentine One-Liners


Stuck in another never-gonna-end/way-too-long conference call? Save time with some ideas for writing your own card. Click here.

 

End Notes

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Eugene






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