MLB-Slaw Selected Case Summaries

Here you'll find weekly summaries of selected cases provided to Slaw by Maritime Law Book's National Reporter System.

Sep 16

R. v. P.C. 2014 ONCA 577

Civil Rights

Summary:
The accused, a young offender at the time, was tried by a judge and jury and found guilty of manslaughter. The accused wished to appeal his conviction, but lacked the resources to retain counsel. He filed an appeal and applied to have state funded counsel appointed (Criminal Code, s. 684(1)). Section 684(1) gave a judge the discretion to appoint counsel for an indigent accused on appeal, “where it appears desirable in the interests of justice”. The motions judge dismissed the application. The accused appealed, arguing that s. 684(1) violated ss. 7, 10(b), 11(d) and 15 of the Charter because there was no automatic right to state funded counsel, Further, any prerequisite on him to show that the appeal had some merit offended his Charter rights.

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Ratiopharm Inc. v. Canada (Attorney General) 2014 FC 502

Constitutional Law - Statutes - Trade Regulation

Summary:
Ratiopharm Inc. sold generic drugs in Canada, including ratio-salbutamol HFA (“ratio HFA”), the generic equivalent of Ventolin HFA, a product manufactured by GlaxoSmithKline Inc. (GSK). Ratiopharm sold ratio HFA to pharmacies after having purchased it under contract from GSK. The two products competed against one another and other similar products in the Canadian market. Under the contract with Ratiopharm, GSK retained all patent rights to its product. The Patented Medicines Prices Review Board found that Ratiopharm, by virtue of its contract with GSK, was a “patentee” under s. 79(1) of the Patent Act, R.S.C. 1985, which put its prices within the Board’s jurisdiction. In two subsequent decisions, it found that Ratiopharm was obliged to provide the Board with information and documentation about its prices, was selling ratio HFA at an excessive price, and had to pay damages of $65,898,842.76. Ratiopharm sought judicial review of all three decisions.

The Federal Court allowed all three applications. Taking into account the federal-provincial division of powers, and interpreting the scope of the Act accordingly, Ratiopharm was not a “patentee”. Therefore, the Board had no jurisdiction over its sales of ratio HFA.

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Sep 9

McAteer et al. v. Canada (Attorney General) 2014 ONCA 578

Aliens - Civil Rights - Constitutional Law - Statutes

Summary:
The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their rights to freedom of conscience and religion (Charter, s. 2(a)), freedom of expression (s. 2(b)) and equality (s. 15). They applied for declaratory relief under the Charter.

The Ontario Superior Court, in a decision reported [2013] O.T.C. Uned. 5895, dismissed the application The court held that the oath to the Queen, as required by the Act, was a form of compelled speech that prima facie infringed the applicants’ freedom of expression under s. 2(b) of the Charter. However, the oath was a reasonable limit on the right of expression and was therefore saved by section 1. The oath was found not to violate either s. 2(a) or s. 15(1) of the Charter. The applicants appealed and the Attorney General of Canada cross-appealed.

The Ontario Court of Appeal held that the applicants’ rights under ss. 2(a), s. 2(b) and 15(1) had not been violated. The court dismissed the applicants’ appeal and allowed the Attorney General’s cross appeal.

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R. v. Godbout (T.E.) 2014 BCCA 319

Civil Rights - Criminal Law - Narcotic Control - Police

Summary:
Godbout appealed his conviction for two counts of possessing controlled substances for the purpose of trafficking contrary to s. 52 of the Controlled Drugs and Substances Act. The issue on the appeal was whether the opening, search and seizure of a package that a third party arranged to have delivered to Godbout withstood Charter scrutiny. The shipping contract authorized the inspection of the package both by the shipping company and government authorities. Godbout argued that the trial judge erred in finding: (a) the search of the package did not violate s. 8 of the Charter; and (b) regardless, the evidence would be admissible under s. 24(2).

The British Columbia Court of Appeal dismissed the appeal. There was no breach of Godbout’s s. 8 Charter rights. There was no reasonable expectation of privacy in the package and its contents during the period between the delivery of the box to the shipping company and the controlled delivery to Godbout. “The police did not breach his constitutionally protected privacy rights by taking custody, from the shipping company, of an opened package that contained 535 grams of cocaine shipped by a third party under a contract that expressly authorized both the carrier and the governmental authorities to open the package, because the appellant had in the circumstances no such rights. The privacy interest asserted by the appellant is not objectively reasonable.”

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Delane Industry Co. v. PCI Properties Corp. et al. 2014 BCCA 285

Estoppel - Landlord and Tenant

Summary:
Delane Industry Co. Ltd. leased retail space. The landlord (PCI) elected to levy distress for unpaid rent. PCI seized and sold Delane’s goods, and then terminated the lease. Delane applied for a declaration reinstating the tenancy. It argued that rent distress and termination were alternate, mutually exclusive remedies and that PCI, having exercised its right of distress for unpaid rent, could not terminate the tenancy for the same breach. The question raised was whether PCI might, upon completion of the distress, terminate the lease on the basis of continuing arrears, without giving a “fresh” notice of default that complied with the terms of the lease.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1397, answered the question in the negative and declared that a notice of default given by PCI while distress was ongoing was not effective to terminate the lease immediately upon completion of the distress. A “cumulative remedies” clause in the lease did not change that result. Further, the trial judge suggested that it would be open to PCI, in its “fresh” notice of default, to claim rental arrears that pre-dated the distress proceedings and, if the arrears remained unpaid following the required notice period, to terminate the lease on that basis.

The British Columbia Court of Appeal agreed with the trial judge’s conclusion on the first point and therefore dismissed the appeal. However, the Court disagreed with the suggestion that if and when PCI issued a new notice of default, it might rely on rental arrears that accrued prior to the completion of the distress as the basis for terminating the lease. In the result, any new notice of default would have to be based on a “new” default or breach by Delane and would have to comply with the requirements set out in the lease for termination by PCI.

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Aug 26

Malton v. Attia et al. 2013 ABQB 642

Barristers and Solicitors - Courts - Evidence - Torts

Summary:
The plaintiffs hired the defendant lawyer and his law firm to represent them in their lawsuit against HouseMaster Inspection Service for a deficient house inspection. The plaintiffs were partially successful. The plaintiffs made a complaint to the Law Society of Alberta with respect to the defendant’s management of the HouseMaster action. In June 2008, the plaintiffs sued the defendant. After the trial ended, the defendant requested that the court address one issue before the parties would argue the whole case. At issue was whether it was fatal to a plaintiff’s action in negligence against a lawyer, if the plaintiff failed to call the evidence of an expert lawyer as to standard of care.

The Alberta Court of Queen’s Bench determined the issues.

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R. v. Al-Enzi (N.B.) 2014 ONCA 569

Barristers and Solicitors - Civil Rights - Courts - Criminal Law

Summary:
Al-Enzi, Kayem and Abdul-Hussein were charged with the murder of Zalal. Abdul-Hussein gave a statement to the police that Al-Enzi shot Zalal in a car driven by Kayem. The Crown then proceeded jointly against Al-Enzi and Kayem, charging each with first degree murder. Both pleaded not guilty and blamed the other. Midway through the trial, Abdul-Hussein recanted his statement. Al-Enzi’s counsel was allowed to withdraw. Al-Enzi could not find another lawyer, despite an adjournment of nearly four months and an extensive search throughout the province. He applied for a severance or a mistrial. The trial judge refused and appointed amicus curiae to assist Al-Enzi. Kayem was acquitted. Al-Enzi was convicted. He appealed on the main ground that the trial judge’s refusal to grant a severance or a mistrial caused a miscarriage of justice.

The Ontario Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial. “[T]he trial judge exercised his discretion unreasonably by denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to represent him at a new trial. The appointment of amicus, even with an expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The trial judge’s denial of a severance or a mistrial deprived Al-Enzi of a fair trial, both in appearance and in reality. It produced a miscarriage of justice.”

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Aug 12

Matheson v. Lewis et al. 2014 ONCA 542

Courts - Insurance - Motor Vehicles - Statutes

Summary:
The plaintiff, a farmer, was injured while driving an uninsured all-terrain vehicle (ATV) on a public road when he was struck from behind by a truck. The farmer and his family members (the plaintiffs) commenced an action against the driver of the truck, the truck owner and the farmer’s own automobile insurer (the defendants). The plaintiffs brought a pre-trial motion to determine whether their action was statute barred by s. 267.6(1) of the Insurance Act. Section 267.6(1) precluded a claim for damages if the injured person was operating an uninsured motor vehicle on a highway contrary to s. 2(1) of the Compulsory Automobile Insurance Act. The plaintiffs also sought a declaration that their claims against their insurer, Lanark Mutual Insurance Co., were not foreclosed by operation of s. 30(1)(a) of the Statutory Accident Benefits Schedule. Section 30(1)(a) provided that an insurer was not required to pay various benefits in respect of an injured driver who knew or ought reasonably to have known that he or she was operating an automobile without motor vehicle liability insurance.

The Ontario Superior Court, in a decision reported [2013] O.T.C. Uned. 2441, held that the ATV was a “self-propelled implement of husbandry” and was therefore excluded from Ontario’s compulsory insurance regime. Consequently, neither s. 267.6(1) of the Insurance Act nor s. 30(1)(a) of the Statutory Accident Benefits Schedule, applied to bar the plaintiffs’ claims. The defendants appealed.

The Ontario Court of Appeal allowed the appeal based on the conclusion the ATV was not a self-propelled implement of husbandry but an off-road vehicle that had to be insured when operated by a farmer on a public road. The court held that the action was statute-barred by operation of s. 267.6(1) of the Insurance Act and the claims against Lanark Mutual for statutory accident benefits were foreclosed by operation of s. 30(1)(a) of the Statutory Accident Benefits Schedule.

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Estabrooks v. New Brunswick Real Estate Association 2014 NBCA 48

Courts - Torts

Summary:
The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct. The Committee assessed costs against Estabrooks and imposed a fine. Estabrooks appealed.

The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at (2003), 261 N.B.R.(2d) 260; 685 A.P.R. 260, allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks. In 2009, Estabrooks sued the NBREA for malicious prosecution.

The New Brunswick Court of Queen’s Bench, Trial Division, in a decision not reported in this series of reports, allowed the action. The NBREA appealed.

The New Brunswick Court of Appeal allowed the appeal.

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Desjardins Securities Inc. v. Schellenberg 2014 MBQB 115

Brokers - Torts

Summary:
Desjardins Securities Inc. (DSI), a discount electronic trading broker, liquidated a number of trading options accounts held by Schellenberg, a sophisticated options trader, for failing to deposit cash or securities as demanded by DSI to satisfy margin calls. DSI claimed the shortfall of $61,203.48. Schellenberg advanced a counterclaim against DSI and three of its employees. His damage claim exceeded $2 million for alleged breaches of duty that “resulted in the decline of the value of his accounts and a loss of [his] life savings”.

The Manitoba Court of Queen’s Bench dismissed the counterclaim. DSI was entitled to judgment against Schellenberg in the amount of $61,203.48, plus costs and prejudgment interest.

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