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Supreme Advocacy
Issue #13
March 12, 2015
  Appeals   
  Leaves   
SCC Today: 10 Leaves (10 Dismissed)

Supreme One-Liners

There were no Leaves granted today.

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Leaves to Appeal

Dismissed

  1. Civil Procedure/Courts: Extensions
  2. Civil Procedure: Interventions
  3. Class Actions: Corporate Conversions
  4. Criminal Law: Homicide 
  5. Criminal Law: Sexual Assault
  6. Extradition
  7. Family Law: (International) Jurisdiction
  8. Family Law: Property Division, Support & Compensation on Divorce
  9. Insurance in Quebec: Duty to Minimize Damage
  10. Torts: (Alleged) Professional Negligence

Dismissed (10)
 

Civil Procedure/Courts: Extensions

Jayaraj v. His Excellency the Right Honourable Governor General et al., 2014 FCA (36209)
On June 3, 2014, the appointment of Justice Clément Gascon to the S.C.C. was announced. The Applicant wished to challenge that nomination as well as the nomination, in the summer of 2014, of 14 other federally-appointed judges. On August 27, 2014, the Applicant filed a motion in the Federal Court requesting an extension of time to file a notice of application for J.R. of the appointments. Federal Court: motion for an extension of time to file an application for judicial review, dismissed. Fed. C.A.: appeal dismissed. "The application for leave to appeal...is dismissed without costs."
 

Civil Procedure: Interventions

Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145 (36035)
In 1992, several Ontario-based First Nations brought an action against the Respondent, Canada, alleging in the negotiation and signing of the Williams Treaties in 1923, it failed to provide fair compensation, did not provide reserve lands and failed to protect the First Nations’ legal interests, thereby breaching its fiduciary obligations.  Canada joined the province of Ontario by way of third party claim.  Both Canada and Ontario fully defended the action.  The first phase of the trial commenced in May, 2012.  The Ontario Federation of Anglers and Hunters brought a motion for leave to intervene. Federal Court: Applicant’s motion for leave to intervene dismissed. C.A.: Respondents’ motion to strike Applicant’s notice of appeal granted; Applicant’s motion for extension of time dismissed. "The application for leave to appeal...is dismissed with costs to the respondents with the exception of Her Majesty the Queen and Her Majesty the Queen in Right of Ontario." 
 

Class Actions: Corporate Conversions

Mandeville v. The Manufacturers Life Insurance Company, 2014 ONCA 417 (36071)
The Respondent (“Manulife”) transferred the participating policies of Barbados residents to another life insurance company in December 1996.  The transfer was made without any compensation to policyholders for their share in the value of Manulife.  At that time Manulife stated it had no present intention of pursuing demutualization and the regulatory framework precluded demutualization by highly capitalized mutual insurance companies.  In January 1998, Manulife announced it would demutualize, and a year later regulatory amendments made demutualization possible.  Only those who were participatory policyholders at the date of the announcement shared in the allocation of the $9B total value of Manulife as it transformed into a stock company.  The Applicants are representative plaintiffs of a class action brought on behalf of the former Barbados policyholders.  They brought an action in damages for negligence and breach of fiduciary duty against Manulife.  They claimed at the time of transferring their policies, Manulife should have protected their interests and their right to a share in the value of the company on demutualization.  The Superior Court of Justice dismissed their action, and the C.A. dismissed the appeal and a cross-appeal on damages. "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."
 

Criminal Law: Homicide 

R. v. W., 2014 SKCA 94 (36171) 
There is a publication ban in this case, and the court file contains information not available for inspection by the public, in the context of a violent home invasion resulting in homicide. "The application for leave to appeal...is dismissed."
 
Criminal Law: Sexual Assault
B. v. R., 2014 NWTSC 48 (36185) 
There is a publication ban in this case in the context of the jury selection process for a sexual assault trial. "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."


Extradition

D. v. Attorney General of Canada on behalf of the U.S.A. and The Minister of Justice, 2014 ONCA (36078)
There is a publication ban in this case in the context of the powers of extradition judges. "The application for leave to appeal...is dismissed."
 

Family Law: (International) Jurisdiction  

Murray v. Ceruti, 2014 ONCA 679 (36193) 
In March, 2013, Ms. Murray, a Canadian citizen, moved from Ontario to Indiana to live with Mr. Ceruti, an American citizen.  She became pregnant the following month and the couple was married on May 8, 2013.  On June 18, 2013, the parties separated and Mr. Ceruti served Ms. Murray with a petition for divorce.  On that same day, Ms. Murray moved back to Ontario.  Her Indiana counsel entered a notice of appearance in the Indiana proceeding on July 5, 2013.  Mr. Ceruti sought an order for sole custody of the child upon the child’s birth.  Ms. Murray filed a petition to annul the marriage in Indiana but no relief was sought with respect to her unborn child.  In October, 2013, her Indiana counsel withdrew from the record.  On the following Monday, there was a hearing before the Superior Court in Indiana, on Mr. Ceruti’s motion to preserve and retain jurisdiction, for final orders pertaining to custody and child support, and the appointment of a guardian ad litem. Ms. Murray participated in part of the hearing, without counsel, via telephone from Ontario.  She had previously consulted with Ontario lawyers and understood custody could not be addressed until the child was born.  On December 2, 2013, the Indiana court ruled it had jurisdiction over the issue of custody and ordered Mr. Ceruti would have full and co-equal parenting time rights.  The child was born in Ontario on December 11, 2013.  On December 20, 2013, Ms. Murray obtained an ex parte order in Windsor, Ontario, for temporary custody and for an order the child not be removed from the province on an interim basis. She filed an application in the Superior Court seeking custody of the child.  Mr. Ceruti brought a motion to set aside the ex parte order and to stay her application. Ontario Superior Court of Justice: father’s motion to stay Ontario custody and access proceedings and to have Indiana court declared more appropriate forum dismissed. C.A.: father’s appeal dismissed. "The application for leave to appeal...is dismissed with costs."
 

Family Law: Property Division, Support & Compensation on Divorce

Hathaway v. Hathaway, 2014 BCCA 310 (36101) 
The parties lived together for approximately 13 years when they married in 2003.  In 2004, they moved to Vancouver, where Mr. Hathaway obtained work in the high-risk high-return world of the junior mining industry.  Their son was born in February, 2005 and their daughter was born in January, 2007. Ms. Hathaway stayed at home to raise the children while Mr. Hathaway pursued a demanding and successful career.  The family enjoyed an affluent lifestyle.  In 2008, their son was diagnosed with autism and his condition required routine and consistency in the home, which was primarily Ms. Hathaway’s responsibility.  The parties separated in November 2010.  Mr. Hathaway bought a house close to the matrimonial home and for the next several months, paid money into their joint account for family expenses.  The total value of their assets was approximately $8 million in addition to stock options the parties agreed to share equally.  Mr. Hathaway sought an equal division of family assets and debts while Ms. Hathaway sought a reapportionment of the family home in her favour.  Mr. Hathaway sought joint custody of the children with equal sharing of time.  Ms. Hathaway’s position was she should continue in her role as primary caregiver.  At trial, Mr. Hathaway stated his income for 2012 was $688,000 and took the position appropriate spousal support should be $16,000 per month and child support should be $9,000 a month.  Ms. Hathaway contended his income, averaged over three years was $2.26 million per annum and he should have to pay $54,121 in spousal support and child support of $29,000 per month, as well as retroactive child and spousal support. B.C.S.C.: joint custody and joint guardianship of children ordered with parenting schedule; child support of $12,814 and spousal support of $24,124 per month ordered.  Matrimonial home reapportioned 65 per cent to Ms. Hathaway; compensation payment of $645,000 ordered. B.C.S.C.: corrections to trial judgment made; Mr. Hathaway’s application to reopen trial to adduce fresh evidence dismissed; Mr. Hathaway’s motion for a stay on the payment of the compensation payment granted in part.  B.C.C.A.: Mr. Hathaway’s appeal dismissed. "The application for leave to appeal...is dismissed with costs."
 

Insurance in Quebec: Duty to Minimize Damage

Lebel v. 9067-1959 Québec inc., 2014 QCCA 1309 (36084) 
The Applicants owned an apartment building.  In 2007, they hired the company Alie Construction (Alie) to repair the roof.  During the work, water leaked into the building as a result of heavy rain.  The day after the disaster, the Applicants’ insurer, Groupe Ledor, the Respondent, informed the Applicants by telephone the damage was not covered by their insurance policy.  On the same day, a company specialized in disaster recovery work assessed the damage and informed the Applicants it was urgent to dry and ventilate the building; this work, however, was not carried out.  Two months after, the tenants complained about damp and health-related problems.  Two months after, a microbiological analysis report recommended renovation and decontamination work.  The Applicants hired a company to carry out extensive work. The Applicants then instituted a proceeding against Alie and its insurer, and against their own insurer.  They claimed $558,034.71 to cover the cost of restoring the building.  The Superior Court allowed the motion in part.  Justice Bergeron concluded the direct and immediate cause of the damage was the fault of Alie and the contractor’s fault was a risk covered by the Applicants’ insurance policy; however, she criticized the Applicants for not minimizing the damage and assessed the damage as amounting to $139,112.29.  The C.A. dismissed the appeal. "The application for leave to appeal...is dismissed with costs."
 

Torts: (Alleged) Professional Negligence

Harris v. Levine, 2014 ONCA 608 (36134) 
Mr. Levine is the former criminal defence counsel of Mr. Harris.  Mr. Harris was found guilty of one count of criminal harassment and one count of assault causing bodily harm as a result of a parking dispute he had with a neighbour.  On appeal in the criminal proceeding, Mr. Harris initially alleged he received ineffective assistance from counsel, but he abandoned the argument prior to the hearing of the appeal.  Mr. Harris’ appeal was dismissed and he did not seek leave to appeal to the S.C.C.  He also did not attempt to overturn his conviction pursuant to s. 696.1  of the Criminal Code.  Mr. Harris chose instead to commence an action in negligence against Mr. Levine in which he took the position he was innocent of the criminal charges.  Mr. Harris claimed damages totalling $1.1 million. The motion judge struck Mr. Harris’ claim on the basis it was an abuse of process.  The C.A. dismissed the appeal. "The application for leave to appeal...is dismissed with costs."
 

Court of Appeal Decision of the Week

“You Can’t Always Get What You Want” (Rolling Stones), But You Can Bring a Class Action to Get It (NWT C.A.)
 

Case: Bell Mobility Inc. v. Anderson, 2015 NWTCA 3

Keywords: Class Actions, Telecommunications, Certification

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.

Leave to Appeal Database & Factums

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.
 

Upcoming Appeals & Webcasts

The winter session runs from January 12 to March 31, 2015. The following appeals are being heard in March: Scheduled Hearing List
  • March 16: Canadian Broadcasting Corporation/Société Radio-Canada v. SODRAC 2013 Inc., et al. (Federal Court) (Civil) (By Leave) 35918
  • March 17: M.M. v. Minister of Justice Canada on behalf of the United States of America (Quebec) (Criminal) (By Leave) 35838
  • March 18: Société en commandite Place Mullins, et al. v. Services immobiliers Diane Bisson inc. (Quebec) (Civil) (By Leave) 35461
  • March 19: Savdip Sanghera v. Her Majesty the Queen (British Columbia) (Criminal) (As of Right) 36017
  • March 20: Her Majesty the Queen v. Owen Edward Smith (British Columbia) (Criminal) (As of Right) 36059

Newsletter Follow-up


Coincidence, or Meant to Be – Who Knows?


"Eugene, two coincidences, both involving my niece (who will be 17 in June).

First, when she was busy 'baking' in my sister-in-law, my grandfather was on his way out of this world.  The same day he died, they first heard her heartbeat.  They named her after him, not that this coincidence had anything to do with it.

Second is another coincidence, and this is my memory of what was told to me since I was not there at the time, I arrived later that day.  The day my niece was born, a cousin (who was 18 at the time) picked up the baby name book they had in the hospital room and she flipped through it.  I do not believe the book was marked up to any degree.  She did not yet know the baby’s name, which was not yet widely known, perhaps just the grandparents and any aunts/uncles who had been there already to “meet” the baby.   

My cousin flipped away through the book, landed on a page and said something like “Sage, that’s a nice name”.  Sage was the middle name they had picked.  My sister in law, wondering if my brother had spilled the beans, was slightly annoyed.

She flipped some more, landed on another page, and said something like “Kaylie, I like that name”.  At this point, my sister in law was staring daggers at my brother, since Kaylie was their chosen first name.

My cousin did not comment on any other names, just those two, and put the book back.  Odd coincidence.

As a follow up, I did not participate in naming my niece, though I did convince them to go with Kaylie as opposed to Kayleigh.  My sister in law occasionally thanks me for straightening them out on this.  I think it’s best to keep people out of the loop in choosing a name until the name is chosen and final – that way instead of complaining they simply bite their lip, and soon after that most close family tend to like the name they now associate with a cute baby (whether cute or not, that’s how we see the babies closest to us after all)."

Thank you: Steven Leitman, Kingston leitman@kingston.net
 

Website of the Week

Test Your S.C.C. Knowledge


Most of the time using a Court website is a necessary evil – you look up a judgment and then you get out. Anything more and you might break the internet. The Supreme Court of Canada however, has slowly been modernizing their website for the past coupla' years, and one of the gems from it is an interactive quiz about Supreme Court of Canada history. 

Click Here to test yourself and see how acquainted you are with the highest court in Canada.

Email me if you have any S.C.C. trivia of your own.
 

Last Word

Good Openings–Should Make You Want to Read More


Whether in factums or judgments (or just about anything really) it’s important to have a good opening.

In a factum there’s a range of options, for example:
  • lead with strength
  • set out a key finding of fact
  • indicate why this particular issue/appeal is important to that area of  law, & how it fits into that legal landscape
  • or, an organizational-type overview – three important issues, ABC/XYZ/whatever
So here’s (immediately below) a judicial opening—make you want to read more? Then click on the hyperlink at the bottom.

“For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. She effortlessly put the “rage” in “outrageous,” even going so far as to arrange for the board of directors of the housing co-operative where she lives to send a letter to the respondent, advising him that he is “no longer allowed on the property” and that “the Niagara Regional Police will be notified” should he be spotted, thus thwarting all access pick-ups and drop-offs. A letter also was sent to the police. These letters were prepared and delivered while the trial was in progress and they were not justified by any change in circumstances or by any evidence that I heard. Such meanness is unusual, even in the dysfunctional world of family litigation. The no-trespass letters raise questions: What evidence did the housing co-operative possess? Was this an attempt to obstruct the work of the court? Does this court have jurisdiction to quash the letters?

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.” (paras. 1-3)

Click Here to read more.
 
Thank you: Mike Preston (McLean & Armstrong LLP, West Vancouver) mikepreston@mcleanarmstrong.com (for bringing this case to my attention)

 

End Notes

We welcome your suggestions for the Last Word and Website of the Week. Sources acknowledged, of course.

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Eugene