Applications for leave to appeal dismissed - 5 May 2016


36778   Ad Hoc Group of Bondholders v. Ernst & Young Inc. in its capacity as Monitor et al.


Commercial law – Bankruptcy and insolvency – Interest

In the context of ongoing Nortel CCAA proceedings and parallel proceedings under Chapter 11 of the United States Bankruptcy Code, the applicant represents substantial holders of unsecured crossover bonds either issued or guaranteed by certain Canadian Nortel entities. The related indentures provided for the continuing accrual of interest until payment, at contractually specified rates, and for other post-filing payment obligations in the form of make-whole provisions and trustee fees. Therefore, in addition to claiming principal and pre-filing interest in the amount of US$4.092 billion against each of the Canadian and U.S. Nortel estates (whose total proceeds of liquidation are approximately $7.3 billion), the applicant claimed post-filing interest under the crossover bonds equalling an amount of US$1.6 billion. The claims of other claimants, such as pensioners and former employees, do not provide for interest on amounts owed. The Ontario Superior Court of Justice held that the “interest stops rule” developed in the context of insolvency law applies to CCAA proceedings and that the applicant was not legally entitled to amounts claimed above and beyond the outstanding principle debt and pre-petition interest. The Ontario Court of Appeal dismissed the appeal.

36706  Gene Michaud v. Her Majesty the Queen


Charter – Fundamental justice

The applicant was a commercial truck driver. His truck needed to have a functional speed limiter set to a maximum speed of 105 km/hour. The speed limiter on the applicant’s truck was set to 109.4 km/hour, 4.4 km more than the maximum limit. He was charged with contravening the Highway Traffic Act, R.S.O. 1990 c.H8 and the equipment regulation that together imposed the speed limiter requirement. The justice of the peace at first instance acquitted the applicant on the basis that the legislation infringed his right to security of the person and thereby violated s. 7 of the Charter . On appeal, the Ontario Court of Justice admitted fresh evidence, found no Charter violation, and set aside the trial decision. The Court of Appeal held that the Court of Justice did not exceed the scope of appellate review. The Court of Appeal also held that while the legislation resulted in a violation of s. 7 Charter rights, it could be upheld under s. 1 of the Charter .

36853   Mathieu Rouleau v. Her Majesty the Queen


Criminal law

In February 2012, following a nine‑day trial, the applicant was convicted of common assault, assault causing harm, assault with a weapon, threats, criminal harassment and breach of a recognizance, crimes committed against the same victim from 1999 to 2008 in a spousal abuse context. He was later sentenced to imprisonment for 66 months. In 2015, he filed a motion in the Court of Appeal to extend the time to appeal so he could appeal the convictions and sentence. The Court of Appeal dismissed his motion.

36803  Zurich Insurance Company v. TD General Insurance Company


Insurance – Recovery by insurer – Laches

In July, 1999, a multi-vehicle collision involved an automobile insured with TD General Insurance Company and a heavy commercial vehicle insured with Zurich Insurance Company. Over the course of the decade that followed, TD paid significant amounts in accident benefits to the driver of the automobile. Ten years after the accident, a global mediation was held to settle TD’s insured’s tort claim. In February, 2010 TD sent Zurich a Notice of Loss Transfer Request for indemnification alleging that Zurich’s insured was 100 per cent at fault. An application was brought by TD in August 2011 for an order requiring Zurich to participate in a loss transfer arbitration by reason of Zurich’s failure to satisfy TD’s Request for Indemnification. Zurich argued that TD’s loss transfer was barred by the equitable doctrine of laches and by operation of the Limitations Act.

The arbitrator in this case was not satisfied that Zurich had established the necessary prejudice for laches to apply. Zurich’s motion to dismiss the loss transfer claim of TD was dismissed. The applications judge allowed Zurich’s appeal, set aside the Arbitrator’s decision and dismissed TD’s loss transfer application. It was held that the doctrine of laches did apply to the situation in this case because TD acquiesced in the delay. The Court of Appeal allowed TD’s appeal and set aside the order of the applications judge which had set aside the decision of the Arbitrator.

36804   Lombard General Insurance Company of Canada v. Intact Insurance Company of Canada


Insurance – Recovery by insurer – Laches

Intact Insurance Company of Canada sought indemnity from Lombard General Insurance Company of Canada over four years after a multi-vehicle accident involving a pickup truck insured by Intact and a tractor trailer insured by Lombard that occurred in February 2007. Lombard refused to indemnify Intact based on the amount of time that elapsed from the date of the accident to the date of Intact’s first indemnification request. The matter was submitted to arbitration.

The Arbitrator held that Intact was precluded from proceeding with the loss transfer application against Lombard due to its delay in giving notice pursuant to s. 275 of the Insurance Act. The Arbitrator found that the delay was inordinate and inexcusable and gave rise to a presumption of prejudice which was not rebutted. The applications judge set aside the decision of the Arbitrator. It was held that the laches doctrine did not properly apply to loss transfer claims under s. 275 of the Insurance Act and even if the doctrine could apply, it was not reasonable for the Arbitrator to conclude that Lombard had established the necessary elements of the defence in this case. The appeal was allowed and Intact was not barred from pursuing the loss transfer against Lombard. The Court of Appeal dismissed Lombard’s appeal.

36796  Rainer Zenner v. Denyse Zenner


Family law – Support – Arrears

The parties were divorced in Prince Edward Island in 1990. The respondent was awarded sole custody to the two children of the marriage, then ages ten and eight. The applicant was ordered to pay spousal and child support of $1,600 per month. Over the ensuing years, the applicant made very few of the support payments. Instead, he made multiple unsuccessful attempts to have those obligations cancelled, and all arrears forgiven. In 2008 a provisional order was issued in Prince Edward Island stopping spousal and child support as of 2005 and 2006, and cancelling the portion of the arrears that had accumulated from 2005 and 2006 to the date of the order. This order was confirmed by the British Columbia Supreme Court, where the respondent resided in 2011. In 2013, the applicant obtained a provisional order from the Ontario Superior Court that would have varied the original 1990 judgment and forgiven all arrears. The Applicant sought to have this order confirmed at a hearing in Nova Scotia, where the respondent then resided. The Supreme Court of Nova Scotia refused the Applicant’s motion seeking confirmation of the provisional order terminating support and rescinding arrears. The Applicant’s appeal to the Court of Appeal was dismissed.

36814   Gandhi Jean Pierre v. Conseil d’arbitrage des comptes d’honoraires des avocats du Barreau du Québec


Administrative law – Judicial review

The Superior Court allowed a motion to dismiss made by the respondent Conseil d’arbitrage des comptes d’honoraires des avocats du Barreau du Québec (“council”) on the basis of Marquis, in which it had been found that an application for annulment, rather than an application for judicial review, should have been brought against a decision made by the council. About $4,000 was in dispute. In the Court of Appeal, the applicant argued that the judgment on which the Superior Court had relied was unconstitutional and sought to have the Court of Appeal change its position on the application, or rather the non‑application, of arts. 834 to 850 of the Code of Civil Procedure to consensual arbitration, including arbitration of the accounts for fees of lawyers in the Barreau du Québec. In the alternative, he argued that the Superior Court had applied the stare decisis rule too strictly in allowing the council’s motion to dismiss. Finally, he alleged that he had not really been heard by the Superior Court judge because the judge had decided that he felt bound by Marquis, and he added that his constitutional rights had therefore been infringed. The motion for leave to appeal was dismissed.

36850  D.D. v. Children’s Aid Society of Toronto, Office of the Children’s Lawyer


Status of persons – Child protection – Summary judgment

The applicant’s ten year old son has been in the care of the Children’s Aid Society of Toronto since July, 2011 when she voluntarily placed him there under a Temporary Care Agreement. In December, 2012, the mother and the Society consented to a finding that the child was in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11. Access visits continued at the discretion of the Society but in accordance with the child’s express wishes, those visits only took place at the Society’s office and not in the mother’s home. The child stated that he did not wish to live with his mother and later that he did not want any further access. He was observed as displaying troubling behaviour following visits with her. Based on the child’s reports of abuse, access was terminated in February, 2014. The Society applied to make the child a Crown ward without access and brought a motion for summary judgment. The Ontario Superior Court of Justice granted the Society’s motion for summary judgment granted. The applicant’s subsequent appeals were dismissed.

36821   City of Montréal‑Est v. Syndicat des cols bleus regroupés de Montréal, Local 301


Employment law – Workers’ compensation – Duty to accommodate

On May 5, 2003, France Gagnon (“the employee”), who at the time was an employee of the City of Montréal, injured herself at work and filed a claim with the Commission de la santé et de la sécurité du travail (“CSST”). That claim was accepted by the CSST. On February 2, 2007, the employee injured herself again and filed a claim with the CSST, which was denied on May 3, 2007. The employee contested the CSST’s decision and, on March 24, 2009, the Commission des lésions professionnelles (“CLP”) ratified an agreement between her employer (the applicant or “the City”) and her union (the respondent or “the union”). The CLP subsequently confirmed a decision made by the CSST on September 14, 2009 and found that the employee’s employment injury had been consolidated since July 16, 2009 with no need for any other care or treatment, although the employee had been left with a permanent physical impairment and functional disabilities. On May 6, 2010, the CSST informed the employee that she had been found unable to resume her pre‑injury employment, that the City had no suitable employment to offer her and that a rehabilitation process would therefore be initiated with her to identify suitable employment elsewhere in the labour market. On June 14, 2010, the City’s municipal council terminated the employee’s employment. On June 23, 2010, the union filed a grievance contesting the termination of the employee’s employment relationship. The arbitrator declined jurisdiction on the ground that, in this case, the collective agreement between the union and the City did not provide more favourably than the Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001 (“AIAOD”), which meant that the specialized bodies responsible for applying the AIAOD had jurisdiction to resolve the dispute. The union applied for judicial review of the arbitrator’s decision. The Quebec Superior Court allowed the motion for judicial review. The Court of Appeal allowed the appeal for the sole purpose of ordering that the matter be referred back to new arbitrator

36618  Lambros Demos, Angela Brilakis, Ge Lu, Manuel Botelho, James de la Boursodière, Craig Cornoni v. Demers Beaulne Inc.


Charter – Right to equality – Bankruptcy and insolvency

When Groupe Sutton‑Royal, a real estate agency, went bankrupt, the applicant real estate brokers’ commissions were in its bank account. The applicants filed a claim for property with the respondent trustee, Demers Baulne Inc. After the respondent trustee disallowed their proofs of claim, the applicants brought an action in the Quebec courts seeking to be declared the sole owners of the commissions. The courts below found that the commissions were property of the bankrupt and could not be considered property held by the bankrupt in trust, since Quebec civil law rules on trusts had to be applied in interpreting s. 67 of the Bankruptcy and Insolvency Act .

36651  Her Majesty the Queen v. Tobby Carrier


Criminal law — Defences — Automatism

After being charged with the first degree murder of his brother, Ismaël Carrier, and the attempted murder of his parents, Nelson Carrier and Chantal Michaud, the respondent was convicted by a jury of second degree murder and the two counts of attempted murder. On appeal, he argued mainly that the trial judge had erred in law in not putting the defence of mental disorder and the defence of mental disorder automatism to the jury. The Court of Appeal held that the defence of mental disorder automatism, which in its view had an air of reality, should indeed have been put to the jury. However, the Court of Appeal refused to apply the curative proviso in s. 686(1) (b)(iii) of the Criminal Code . It therefore allowed the appeal and ordered a new trial on the same charges.

36702  Entreprise Marissa Inc. v. Attorney General of Canada


Administrative law – Canadian International Trade Tribunal – Civil procedure – Res judicata

In response to an invitation to tender issued by the Department of Public Works and Government Services Canada, the applicant filed a complaint with the Canadian International Trade Tribunal alleging that the invitation to tender created an obstacle to internal trade and was discriminatory. On June 13, 2011, a decision was rendered determining that the complaint was not valid.

The applicant brought an action in the Quebec Superior Court seeking damages because it had not obtained the tender. The respondent filed a motion to dismiss on the basis that the issue had already been decided by the Canadian International Trade Tribunal and that the Tribunal’s decision should therefore have the authority of a final judgment in the Quebec Superior Court. The Quebec Superior Court dismissed the motion to dismiss, holding that the decision of the Canadian International Trade Tribunal did not have the authority of a final judgment. The Court of Appeal allowed the appeal and reversed the finding of the motions judge.

36825   George Lu, et al. v. Eco-Tec Inc.


Private international law — Choice of forum — Forum non conveniens

The four applicants acted as consultant, agent or distributor for the respondent Eco-Tec Inc.’s (“Eco-Tec”) products in China. Eco-Tec and the applicants signed a series of confidentiality and business agreements between 2000 and 2008. Confidentiality agreements signed in 2001 and 2003 contained provisions stating that the agreements would continue to be binding for a period of ten years after termination. A distributor agreement signed in 2008 contained a whole agreement clause, which provided that the agreement superseded all previous agreements. The agreements also contained various forum selection clauses: some in favour of Ontario, others in favour of other jurisdictions or arbitration.

Eco-Tec terminated its relationship with the applicants in 2012 and brought an action against them in Ontario. Eco-Tec alleged that the applicants unlawfully misappropriated its confidential and proprietary information for their own benefit and manufactured/supplied products to compete with Eco-Tec in China and elsewhere. Eco-Tec sued for breach of confidence, breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment and/or unlawful interference with its economic interests. The applicants moved to stay the action, alleging that the Ontario court does not have jurisdiction over the dispute or, if it does, it should decline to assume jurisdiction on the basis of forum non conveniens. The Ontario Superior Court of Justice dismissed the motion to stay the proceedings and the Court of Appeal dismissed the appeal.

36741   JTI-MacDonald Corp v. Attorney General of Quebec


Civil procedure — Quebec Charter — Evidence

Tobacco manufacturers argue that the Quebec Tobacco-related Damages and Health Care Costs Recovery Act is unconstitutional, particularly with respect to the right to a fair and full and equal hearing provided for under s. 23 of the Quebec Charter. On June 19, 2009, the Government assented to the Act, establishing special rules applicable to lawsuits seeking the recovery of tobacco-related health care costs and damages against tobacco manufacturers. The Act was first challenged in a motion for declaratory judgment. The Respondent’s subsequent motion for summary dismissal was dismissed and leave to appeal that decision was denied. In June 2012, the Respondent filed a lawsuit against the Applicant and other defendants seeking $60 billion in damages. The trial judge concluded that the Act did not infringe the Quebec Charter. The Applicant’s subsequent appeal to the Court of Appeal was also dismissed.

36727  Francis Ngau Musyoki v. Robert William Geertsema, et al.


Summary judgment

Mr. Musyoki purchased a vacant lake property from the respondents. The agreement of purchase and sale indicated that there was a 20 foot easement “FOR GOLF COURSE WATER PUMP”, the quoted words having been inserted by the selling agent. The buyer was allowed time to examine the title to the property, and to terminate the agreement if his valid objections to the state of the title were not satisfied. If no objection was made, the agreement deemed the buyer to have accepted the title. No objection to the title was made by October 28, 2011, the requisition date. The “description” box of the deed indicated that the easement was a right-of-way in the original deed, but not in the November 2006 registration.

In June 2013, Mr. Musyoki brought an action against Mr. Legros and the numbered company that owned the golf course. In November 2011, he brought a second action alleging material misrepresentation by both the beneficiary of the easement and its nature against the respondents and another defendant. Mr. Musyoki argued that he did not know that the easement was a right-of-way, nor that it was for the benefit of Mr. Legros, a director and officer of a nearby golf course, rather than for the golf course itself. The motions judge granted summary judgment, and Mr. Musyoki’s appeal was dismissed.

36800   Laura Marie Flatt v. Attorney General of Canada


Human Rights – Discriminatory practices

Following her one-year maternity leave, the applicant requested permission to telework in order to continue breastfeeding her third child. Despite various exchanges, the parties failed to establish a suitable work schedule that would meet both their needs. As a result, the applicant filed a grievance claiming that the failure to accommodate was discriminatory on the basis of sex and family status, contrary to the Canadian Human Rights Act, R.S.C. 1985, C. h-6 and the collective agreement. The grievance was dismissed. The application for judicial review was dismissed.

36782   Whirlpool Canada LP v. Alliance Laundry Systems LLC


Intellectual property — Trade-marks — Proof of use

At the request of the Alliance Laundry Systems LLC, the Registrar of Trade-Marks forwarded a notice under s. 45 of the Trade-marks Act, R.S.C. 1985, c. T-13 , to Whirlpool Canada LP, the registered owner of registration no. UCA15837 for the trade-mark SPEED QUEEN, requesting proof of use of the mark between October 5, 2008 and October 5, 2011. At the outset, Whirlpool Canada conceded that the registration should be amended to delete all but two wares (washing machines and dryers), and all services. It submitted an affidavit from Whirlpool Corp.’s Director/General Manager indicating that SPEED QUEEN had been used by Whirlpool Canada and its licensees (including Whirlpool Corp.) in association with washers and dryers in Canada in the normal course of trade within the relevant period; total sales figures for SPEED QUEEN washers and dryers in Canada in 2001-2010, an unspecified portion of which were affirmed to have occurred in the relevant period; a licensee’s invoices dated shortly after the relevant period, said to be representative of the invoices issued during the relevant period; that Whirlpool Canada had retained direct or indirect control of the character and quality of SPEED QUEEN washers and dryers marketed and sold by its licensees in Canada since it acquired the mark in 2004. He also provided undated photographs of what appeared to be commercial, coin-operated washers and dryers prominently displaying the mark.

The Hearing Officer was satisfied that the affidavit had showed use of the mark during the relevant period within the meaning of s. 4(1) of the Trade-marks Act . The Federal Court dismissed Alliance’s appeal, but the Federal Court of Appeal allowed Alliance’s further appeal. It ordered that the Registrar of Trade-marks expunge registration no. UCA15837 in association with Whirlpool Canada’s washers and dryers.

The Federal Court dismissed the appeal from the decision of the Registrar of Trade-marks. The Federal Court of Appeal allowed the appeal and ordered that the registration no. UCA15837 in association with Whirlpool Canada’s goods be expunged.

36785  Daniel Laforest v. Agence du revenu du Québec, Attorney General of Quebec


Family law – Taxation – Support

Mr. Laforest challenged the fact that the child support he paid was neither taxable nor deductible under s. 336.0.3 of the Taxation Act, CQLR, c. 13. In 2005, the Superior Court had ordered him to pay support to his former spouse for his two children. It was impossible for him to deduct that support from his taxable income. He appealed the assessments made for 2008, 2009 and 2010. The Court of Québec dismissed Mr. Laforest’s appeal and the appeal from that order was also dismissed.

Original Article