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Supreme Advocacy
Issue #56
October 08, 2015
Appeals   
Leaves   
SCC Today: 6 Leaves 

Supreme One-Liners

Canadian Transit Company v. Windsor (Corporation of the City), 2015 FCA 88 (36465) 
Does the Federal Court have jurisdiction over the dispute in issue here. 

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Granted
 

  1. Municipal Law/Transportation Law: Jurisdiction; Motions to Strike


Dismissed

  1. Civil Procedure: Motions to Strike
  2. Employment Law: Wrongful Dismissal; Summary Judgments
  3. Extradition
  4. Family Law: Variation
  5. Tax: Federal Court or Tax Court
     

Granted (1)

 

Municipal Law/Transportation Law: Jurisdiction; Motions to Strike

Canadian Transit Company v. Windsor (Corporation of the City)2015 FCA 88 (36465) 
The Respondent Canadian Transit Company (“CTC”) owned and operated the bridge spanning between Windsor and Detroit. It planned to build another bridge and purchased land in Windsor. The Applicant City of Windsor alleged the properties had not been properly maintained and under its by-laws issued repair orders against CTC’s 114 properties.  CTC applied to the Federal Court. In its notice of application, CTC sought a declaration the City’s by-law “does not apply to properties purchased, leased or otherwise acquired and held” by it, including the 114 properties.  The City brought a motion to strike the application in the Federal Court. The Federal Court allowed the motion. The Federal C.A. allowed the appeal, set aside the judgment of the Federal Court and dismissed the motion to strike. "The application for leave to appeal...is granted with costs in the cause."
 

Dismissed (5)
 

Civil Procedure: Motions to Strike

Lin v. Rock, 2015 ONSC 1929 (36543) 
Ms. Lin brought an action against her former employer for alleged sexual harassment and racial discrimination. Before the Respondents’ notice of intent to defend was filed in court, Ms. Lin noted the Respondents in default and filed a requisition for default judgment. Master Dash of the Ontario Superior Court of Justice struck out portions of Ms. Lin’s amended statement of claim, concluding much of what was pled was frequently scandalous to the extent it was irrelevant, pled evidence, and/or would have prejudiced a fair trial of the action. Master Dash also set aside Ms. Lin’s noting in default of the Respondents, expressing disapproval of her undertaking such an action without warning. The Ontario Superior Court of Justice dismissed Ms. Lin’s appeal, and subsequent decisions of the Divisional Court and the C.A. dismissed Ms. Lin’s additional motions seeking leave to appeal. "The application for leave to appeal...is dismissed with costs."
 
Employment Law: Wrongful Dismissal; Summary Judgments
Beatty v. Best Theratronics Ltd., 2015 ONCA 247 (36476)
The Respondent, Mr. Beatty commenced a wrongful dismissal suit against his former employer when he was terminated from his employment without cause. He sought a motion for summary judgment. The Superior Court found the issues of reasonable notice and alleged failure to mitigate did not present a genuine issue requiring a trial and disposed of these issues by way of summary judgment. It awarded damages of $87,295. The third issue of entitlement to aggravated or punitive damages and to certain special damages was ordered to be dealt with by summary trial. The C.A. dismissed the appeal. "The application for leave to appeal...is dismissed with costs in accordance with the Tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada."
 

Extradition

U.S. v. H., 2015 ONCA 266 (36433) 
There is a publication ban in this case in the context of an extradition order to the U.S. "The application for leave to appeal...is dismissed without costs."
 
Family Law: Variation
Reid v. Gillingham, 2015 NBCA 27 (36485) 
The parties married in Newfoundland in 1985 and divorced in 2006. There were four children of the marriage. Ms. Reid was awarded indefinite spousal support and child support, based on the incomes of the parties at the time of the order. In 2013, she applied to vary the amount of spousal support. By that time, Mr. Gillingham had moved to New Brunswick to pursue employment opportunities. At the hearing for a provisional order, the court found there had been a material change in circumstances since the original order, warranting a variation, based on changes in the parties’ incomes and because there was no longer any child support payable.  The court attributed new incomes for both parties and increased the amount of spousal support payable by Mr. Gillingham. This provisional order was sent to the Court of Queen’s Bench, Family Division in New Brunswick for confirmation. That court transmitted the matter back to the Newfoundland court to determine the appropriate standard of living on which the spousal support should be based. The presiding judge on the continued provisional hearing received additional evidence from Ms. Reid but declined to revisit the provisional order. The matter, including the new sworn evidence, was sent back to New Brunswick for a continuation of the confirmation hearing. There, Mr. Gillingham was represented by counsel and he gave additional evidence on the circumstances surrounding his increase in salary since the date of separation. The court decided Ms. Reid was not entitled to an equitable sharing of Mr. Gillingham’s post-separation income and decreased the amount of spousal support payable from the amount awarded under the provisional order. Ms. Reid appealed. Court of Queen’s Bench of New Brunswick: confirmation judge reducing amount of spousal support awarded at provisional hearing. C.A.: Applicant’s motion to introduce fresh evidence dismissed; Applicant’s appeal dismissed. "The application for leave to appeal...is dismissed with costs."

Tax: Federal Court or Tax Court
Canada (National Revenue) v. ConocoPhillips Canada Resources Corp., 2014 FCA 297 (36304) 
The Applicant, “Conoco”, was one of several oil and gas companies participating in the Syncrude Project in Alberta. On April 14, 2010, members of Conoco’s tax group were notified by the Minister of National Revenue a Notice of Reassessment with respect to Conoco’s taxation year ending November 30, 2000 was purportedly mailed by the Minister to Conoco on November 7, 2008. On May 3, 2010, the Minister supplied Conoco with a copy of the assessment that bore a “date of mailing” notation of November 7, 2008. By way of letter dated June 7, 2010, Conoco served the Minister with a notice of objection. By letters dated September 15, 2010 and October 12, 2010, the Minister informed Conoco, because the objection was not served within 90 days of the mailing of the reassessment, and because no request for an extension of time to do so was made within the following year, the objection was rejected. The Minister maintained the notice of reassessment was mailed while Conoco took the position the Minister had failed to prove the mailing. Three statutory time-line provisions of the Income Tax Act were engaged. Conoco brought an application to have the Minister’s rejection set aside so its objection could be considered. The key issue was whether the Minister’s finding the assessment was mailed on November 7, 2008 was substantiated on the evidence. The Minister argued the court had no jurisdiction to hear and determine the application because its subject matter was within the exclusive jurisdiction of the Tax Court of Canada. Federal Court: application for judicial review of decision of Minister granted. Federal C.A.: appeal allowed; application for judicial review dismissed; Federal Court lacking jurisdiction; proper jurisdiction of Tax Court of Canada. "The motion to file a sur-reply is dismissed. The application for leave to appeal...is dismissed with costs."
 

Court of Appeal Decision of the Week

Where there’s no will, the answer is ‘no way’: Secret Trusts, Step Children & the Law of Intestacy


CasePeters v Peters Estate, 2015 ABCA 301 (CanLII) 

Keywords: Intestacy; Wills and Succession Act, SA 201, c W-12.2; Fresh Evidence Application; Secret Trust; Descendents; Lineal Descendents; Step Children

Read Full Summary
 

Who We Are, How We Can Help

The Team

We're a boutique firm specializing in:
  • SCC advocacy and agency
  • ghostwriting factums at all appellate levels
  • preparing complex legal opinions.
Our team knows the Supreme Court — we’ve worked there, we argue there:
  • Eugene, former Executive Legal Officer to Chief Justice Lamer, has a Masters and Doctorate in Civil Law from McGill.
  • Marie-France is a former SCC 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, recently joined the firm and has a Bachelor of Arts (Honours) degree from Queen’s, and Juris Doctor from Ottawa.

SCC Database

Supreme Advocacy LLP has compiled a fully searchable database of every single S.C.C. Leave to Appeal going back a full 10 years. We access it to help clients win their Leaves to Appeal—or if Respondent, help them defeat one. Email/call us if we can help you.

We also keep copies of well-written and persuasive factums that have been filed on appeal. Email us if you'd like a list of what's in our factum database.

We also have factums (Application, Response, Reply if any) for all Leaves granted in 2015 et seq.— email us if we can help you in this regard.

 

Upcoming Appeals & Webcasts

The fall session of the Supreme Court of Canada commences Oct. 5, 2015. The following appeals are being heard in October:
  • October 7: Barrett Richard Jordan v. Her Majesty the Queen (British Columbia) (Criminal) (By Leave) 36068
  • October 7: Her Majesty the Queen v. Kenneth Garvin Williamson (Ontario) (Criminal) (By Leave) 36112
  • October 8: Harry Daniels, et al. v. Her Majesty the Queen as represented by The Minister of Indian Affairs and Northern Development, et al. (Federal Court) (Civil) (By Leave) 35945
  • October 9: Rogers Communications Inc., et al. v. City of Châteauguay, et al. (Quebec) (Civil) (By Leave) 36027
  • October 13:  Derek Riesberry v. Her Majesty the Queen (Ontario) (Criminal ) (As of Right/ By Leave) 36179
  • October 14: Commission scolaire de Laval, et al. v. Syndicat de l’enseignement de la région de laval, et al. (Quebec) (Civil) (By Leave) 35898
  • October 16: M.J.B. v. Her Majesty the Queen (Alberta) (Criminal) (As of Right) 36421

Website of the Week

Canadian Library Month


October is Canadian library month and the theme of this year's celebration is "Libraries Inspire!"

Click Here for 50 thought-provoking quotes about librarians and libraries.
 

Last Word
 

Things your Librarian/Information Professional Would Like You to Know
 

My partner Marie-France and I strategize research and write winning factums for clients in both courts of appeal and the S.C.C. we come by it honestly because both of us:
  • have a masters (Marie-France, Oxford; me, McGill)
  • doctorates too (Marie-France, Berkeley; me, McGill)
  • and we both worked at the S.C.C. (Marie-France clerked to Justice Laforest; me, Executive Legal Officer to Chief Justice Lamer)
  • and, (I almost forgot) we were both law professors (Marie-France, Moncton, then Ottawa; me, Alberta, then Ottawa).
So, library services (“knowledge management” in today’s parlance) is really important to us at Supreme Advocacy LLP—where we do as much as is possible electronically, not actual library shelves.

And so, that’s why what librarians do is super important—when I was at Lang Michener LLP (as it then was), Linda Boss was my library boss—knowledgeable, accessible, had an answer to just about any question I could ask.

She’s now at Bereskin & Parr LLP, in their Toronto office, and in her words “getting ready to retire”—so I asked her to write down her 7 Tips—below.

Not unsurprisingly—and she’s right—best advice, no 1, is to make your law librarian your friend. Linda, I’ll drop off another café latte next time am in Toronto—still “non-fat, extra hot, no foam”? I’ll be there beginning of next month.
 
Here’s Linda’s 7 Tips:
  1. Make your librarian your friend if you are fortunate enough to have one. He/she is often faster and more cost effective at locating what you need than a student. Students often come straight to us.
     
  2. Librarians are curators, managers, evaluators and navigators of electronic & print sources/collections. Not everything is online and not all sources are reputable. We are the shortcut.
     
  3. Librarians really want to assist with your research/request for information.  Please allow reasonable notice to complete the task.
     
  4. Provide the details of what you require, not the source you think it is in. The information needed is often in many sources, some of which our firm may already have.
     
  5. Your librarian/information specialist has connections—and can obtain or borrow materials your office doesn’t have.
     
  6. Functions performed by libraries (and librarians) are still needed but the stereotype must change from the idea of physical buildings and books to the idea of librarians supporting and assisting in the process of using information and transforming it into knowledge.
     
  7. And last, sign out your materials. Sometimes we can guess who has the item needed—and go looking—but not always and we know you need this urgently.
Thank you: Linda Boss, Bereskin & Parr LLP, Toronto, lboss@bereskinparr.com
 

End Notes

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Eugene