Court of Appeal Decision of the Week

RCMPLAND: Free Press v. Effective Police

Case: R. v. Vice Media Canada Inc., 2017 ONCA 231

Keywords: Free press, law enforcement, production order, journalists, police


Journalist Ben Makuch had been messaging a Calgary man who allegedly left Canada to join ISIS. Makuch wrote three articles about the accused terrorist for Vice Media Canada Inc. Police obtained an ex parte production order requiring the appellants, Vice and Makuch, to hand over background materials used for the stories. Vice and Makuch did not produce the material but instead brought an application to quash or set aside that order and an application to unseal the record the police relied on to obtain the order.

The application judge:

  1. rejected Vice’s application to quash the production order;
  2. set aside most of the order sealing the material on which the police relied to obtain the production order; and
  3. made some of the unredacted information subject to a temporary non-publication order preventing the press from disseminating that information to the public.


Posted: Wednesday, March 29, 2017

Court of Appeal Decision of the Week

Amicus Curiae & Zoning Disputes: With (Amicus) Friends Like These, Who Needs Enemies?

Case: Scaduto v. Cucu, 2017 ONCA 224 (CanLII)

Keywords: Amicus Curiae; Property Zoning


The appellants, Maria Scaduto and her son Guiliano Scaduto, object to the operation of a restaurant at a property neighbouring theirs. The property was originally a garage before being converted into a restaurant. The respondent, Liviu Cucu, owns the property in question and formerly operated the restaurant.

The appellants maintain the property was not zoned for commercial use and the City of Toronto acted improperly in allowing a building permit for conversion of the property. In this proceeding, the appellants seek an injunction against the respondent. The City of Toronto is not a party.

An Application Judge had appointed counsel for Toronto as amicus curiae to help the court with “…the history and with the materials”. (See para. 5). The Application Judge found the appellants are incorrect – the legal address of the property (as distinct from its “convenience address”) had been zoned to permit restaurants. (more…)

Posted: Wednesday, March 22, 2017

Court of Appeal Decision of the Week

Proprietary Estoppel: Applying Wolf v. Canada (Attorney General), 2017 BCCA 30 (CanLII)

Case: Hawes v. Dave Weinrauch and Sons Trucking Ltd., 2017 BCCA 114 (CanLII)

Keywords: Subsurface Mineral Rights; Proprietary Estoppel; Equity


Westmin Resources Ltd. acquires the “Ainsworth property” located in West Kootenay Lake region; hires the appellants as caretakers. In exchange for their services, Westmin allows the appellants to occupy a house for payment of a modest rent.

Boliden Westmin (Canada) Ltd. later acquires the Ainsworth property from Westmin. According to the appellants, Boliden provides assurances the houses they occupy would become theirs. Counsel for Boliden writes to the British Columbia Assets and Land Corporation (BCAL) with a view to completing the sale to the appellants. Although Counsel for Boliden eventually prepares draft contracts for the purchase and sale of properties occupied by the appellants (“if certain conditions were met”), the agreements are never executed. (more…)

Posted: Wednesday, March 15, 2017

Court of Appeal Decision of the Week

“All Inclusive” Language in Termination Clause = No Vacation from Employment Standards Act, 2000, SO 2000, c 41

Case: Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII)

Keywords: Termination Clause; Employment Standards Act, 2000, SO 2000, c 41; Reasonable Notice


Fred Deeley Imports Ltd. (the Respondent) is exclusive distributor for Harley-Davidson motorcycles, parts, apparel and accessories. At the end of April 2015, Harley-Davidson Canada enters an agreement with Deeley to purchase all of its assets. As a result of the buyout, Deeley informs its employees, including the Appellant, that their employment is terminated effective August 4, 2015. As of the date of termination, the Appellant worked as “Sales & Event Planner” for eight years and four months. She is 48 years old at the time her employment ends; her annual compensation, including benefits, is approximately $100K.

The Appellant signed an employment agreement the day after she started working for Deeley. A termination clause in that agreement provides as follows: (more…)

Posted: Wednesday, March 01, 2017

Court of Appeal Decision of the Week

Intervening at the Federal Court of Appeal: Essential Criteria for Proposed Interveners

Case: Canada (Attorney General) v. Shakov, 2016 FCA 208

Keywords: Intervener, Rule 109, Leave to Intervene, Public Interest


The Director of International Programs for the Office of the Commissioner for Federal Judicial Affairs (FJA) quit. The FJA approached Oleg Shakov to take a one-year appointment. The position was created with an “English Essential” language requirement.

The Public Service Commission, an independent agency charged with making appointments to the public service, investigated the appointment. The PSC concluded the language requirement, “English Essential”, had been tailored to fit Mr. Shakov’s profile. It recommended the appointment be revoked.

The Federal Court, in a strongly worded judgment, allowed the application for judicial review and set aside the decision of the PSC: “…there was no favouritism in the appointment of Mr. Shakov. The best person available was chosen for a short term in order to quickly resolve an urgent problem….The PSC’s conclusion of “improper conduct” was unreasonable as it totally disregarded the context in which the decision of the Acting Commissioner was made.” (more…)

Posted: Tuesday, February 28, 2017

Court of Appeal Decision of the Week

A House Divided Against Itself Cannot Stand: Joint Tenancy, Ademption, and the Principles of Hyrniak v. Mauldin

Case: Winnitowy v Winnitowy, 2017 SKCA 12 (CanLII)

Keywords: Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 (CanLII); Summary Judgment; Joint Tenancy; Ademption; Wills & Estates


Bill and Jean Winnitowy meet May 19, 1999, become engaged November 27, 1999 and are married August 30, 2003.

Bill has three children: Randy, Lori, and Dale (the Appellants). All are adults and fully independent from Bill. Jean, the Respondent, is not the biological mother of any of the Appellants.

Bill and Jean reside together in a house. Prior to their marriage, Bill and Jean enter into an “Interspousal Agreement” disposing of the house in favour of Jean upon Bill’s death. Bill later executes a will and Jean is named executrix. After Bill’s passing, a dispute arises between Bill’s wife and Bill’s children with regard to entitlement to the house.

Randy and Lori believe Jean, as executrix, is secretive about the will. The children commence an action seeking orders and declarations which would result in their receiving a beneficial interest in one half of the house. Jean applies for summary judgment dismissing the Appellants’ claim.

The Court of Queen’s Bench finds that, upon his death, Bill no longer owns an interest in the house, as a result of having entered (along with Jean) into joint tenancy with a right of survivorship. An ademption of the bequest to his children of half the value of the house occurs. Jean deposes Bill’s children treated him improperly, leading Bill to his decision to transfer the house into joint tenancy.

Granting summary judgment and dismissing the Appellants’ claim, Tholl J. finds “This was Bill’s intention and the ademption accomplishes the result he wished to occur”. (See para. 72 in Winnitowy v Winnitowy, 2016 SKQB 231 (CanLII)).

On appeal, the Appellants raise the following issues:

  • that the decision to issue summary judgment in the absence of oral evidence constituted palpable and overriding error;
  • the conclusion that Bill’s children provided no evidence to support a finding Jean exerted control over Bill’s ability to make his own decision was unreasonable;
  • that the conclusion that the affidavits of Jean Winnitowy and Arliss Dellow should be given preferential weight as compared to the affidavits of Bill’s children was unreasonable; and
  • in oral argument, that Tholl J. made a palpable and overriding error of fact. (See paras. 3, 4).

The Court of Appeal dismisses the children’s appeal. The Court finds Tholl J. correctly stated the law, extensively reviewed the evidence, resolved issues of credibility, and did not misdirect himself in relation to the issues that were contested. There is no error in the analysis to justify intervention.


This case provides an illustration of the principles found in Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 (CanLII). For the Court of Appeal, the result in this matter was “governed entirely” by the following principles from Hryniak:

[81] In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) [the Rule 7-2 equivalent] and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, at para. 36.

[82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.

[83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[84] Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard: Housen, at para. 8.

It was not insignificant for the Court of Appeal that the parties had already expended a large sum of money on legal fees in circumstances where, for each of the three Appellants, approximately $30,000 was at stake. (See para. 5). The Court of Appeal interpreted Tholl J.’s reasons as having been consistent with Hyrniak principles – namely that the Tholl J. had been making the point that if the matter was ordered to proceed to a trial, “…it would soon diminish, if not eliminate, any possible equity in the home”. (See para. 5).

The Court of Appeal concluded that, where there is no application of an incorrect principle of law or error with respect to a purely legal question, Courts are not to intervene unless the decision is “so clearly wrong” as to result in an injustice. (See para. 14).

Counsel for the Appellants: David Rusnak, Q.C. and Andrew Glum (Rusnak Balacko Kachur Rusnak, Yorkton, Saskatchewan)

Counsel for the Respondent: Shawn Patenaude (Shawn Patenaude Legal Professional Corporation, Yorktown, Saskatchewan)

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Posted: Wednesday, February 22, 2017

Court of Appeal Decision of the Week

“The Proof is in the Pudding”: Court of Appeal Determines Appropriate Tracing Methodology

Case: Easy Loan Corporation v Wiseman, 2017 ABCA 58 (CanLII)

Keywords: Tracing Methodology; Ponzi Scheme; Lowest Intermediate Balance Rule


The Defendants (not parties to the appeal) are alleged to have operated a Ponzi scheme. Following an investigation by the Alberta Securities Commission, a bank account is frozen and a receiver appointed over the assets of “Base Finance Ltd.” The court appointed receiver reports the bulk of investor funds (over $80,000,000) are invested in a U.S. company which filed for bankruptcy protection. (See para. 5).

The Appellant and Respondents are investors in the scheme. Citing Soulos v Korkontzilas, 1997 CanLII 346 (SCC), [1997] 2 SCR 217, 146 DLR (4th) 214, the Chambers Judge finds frozen funds in the Defendants’ bank account are “impressed” with a constructive trust. (See para. 9). The funds are ordered to be distributed according to pro rata sharing based on tracing or the lowest intermediate balance rule (“LIBR”).

There is no appeal of the Chambers Judge’s imposition of the constructive trust. The sole ground of appeal relates to the methodology used to trace the frozen funds; that the Chambers Judge erred in law by holding a pro rata share on the basis of tracing to the lowest intermediate balance rule is the ‘general rule’ unless practically impossible; erred in failing to consider the beneficiaries’ intentions. (more…)

Posted: Tuesday, February 14, 2017

Court of Appeal Decision of the Week

The Test for “Permission to Appeal”

Case: Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII)

Keywords: Pipeline, Energy Regulator, Permission to Appeal; s. 45(1) of the Responsible Energy Development Act, SA 2012, c. R-17.3


The Alberta Energy Regulator holds a 13-day hearing involving 41 witnesses and documentary evidence to consider the approval of two pipelines from Fox Creek to Namao. The Applicants, who do not oppose the pipelines per se, raise a number of questions and concerns about pipelines and their construction; counsel provide a list of site-specific concerns and ask Pembina Pipeline Corporation, the Respondent, to respond. Pembina produces an updated spreadsheet during oral argument which contains a list of “commitments” and outlining the positive steps it is prepared to take with respect to the Applicants’ site-specific concerns. Counsel objects to the timing of Pembina’s disclosure of the list.

The Regulator renders a 95-page, 482-paragraph decision approving construction of the two pipelines subject to some “conditions” but declines to include the list of commitments, stating site-specific concerns should be dealt with via individual agreements between Pembina and the affected landowners. The public interest did not require that Pembina’s commitments be made into conditions to pipeline approval. (more…)

Posted: Tuesday, February 07, 2017

Court of Appeal Decision of the Week

Appealing from an Appeal of an Appeal to the Court of Appeal: What’s the Standard of Review?

Case: Al-Ghamdi v. Peace Country Health Region, 2017 ABCA 31 (CanLII)

Keywords: Alberta Human Rights Commission; Alberta Human Rights Act, RSA 2000 C.A.-25.5; Discrimination; Standard of Review


Dr. Al-Ghamdi, an orthopedic surgeon, complains to the Alberta Human Rights Commission that Peace Country Health Region discriminated against him on the grounds of race, colour, ancestry, place of origin, and age.

After reviewing Dr. Al-Ghamdi’s complaint, reviewing Peace Country Health Region’s written response, and interviewing 11 witnesses, an investigator appointed to make recommendations to the Director of the Alberta Human Rights Commission concludes there is no reasonable basis to proceed to a Tribunal hearing.

Pursuant to s. 22(1) of the Alberta Human Rights Act, RSA 2000 C.A.-25.5, the Director dismisses Dr. Al-Ghamdi’s complaint. The Chief Commissioner upholds the dismissal after Dr. Al-Ghamdi asks for further review. Relying on s. 35 of the Alberta Human Rights Act, Dr. Al-Ghamdi then asks for judicial review of the Chief Commissioner’s decision in the Court of Queen’s Bench. (more…)

Posted: Wednesday, February 01, 2017

Court of Appeal Decision of the Week

Confidential Informants & Police: Promise Made, Promise Broken

Case: Nissen v. Durham Regional Police Services Board, 2017 ONCA 10

Keywords: Informer Privilege; Breach of Confidence; Police; Damages


Margaret Stack lives with her husband Chad and two children “on a quiet street in Whitby”. Ms. Stack went to police, informing them her neighbour’s teenaged son broke into another neighbour’s home and stole guns. Ms. Stack claimed the police promised that her identity and the fact she reported the theft would be treated as confidential – “totally anonymous”. Unbeknownst to Ms. Stack, a recording of her interview with police is videotaped; the recording is included in disclosure materials provided as part of criminal proceedings against the teenaged son.

Ms. Stack is then subject to threatening and harassing conduct by the parents of the accused teenager who had received copies of Ms. Stack’s unredacted police interview. The Stack family is so distressed by this conduct they sell their home and move to another community. Ms. Stack is diagnosed as having post-traumatic stress disorder. (more…)

Posted: Wednesday, January 25, 2017