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EUGENE MEEHAN, Q.C. SUPREME COURT LAW
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Supreme Court of Canada L@wLetter
Thursday, March 24, 2005 Issue 14
In This Issue

Today: 1 oral judgment, 11 leaves to appeal and 1 motion for re-hearing.

1. Oral Judgment

2. Leaves to Appeal Dismissed

3. Motion for Re-hearing: Post-judgment interest

4. Current Court Session

5. Next Court Session

6. Next Motion Day

7. Who we are, What we do

8. Court of Appeal Websites

9. Website of the Week: Law blogs (or "blawgs")

10. Last Word: March break - the right thing to do

11. End Stuff

Today's Report

ORAL JUDGMENT
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UL Canada Inc. v. Attorney General of Quebec et al (Que.) (30065) Appeal heard and judgment rendered March 17, 2004.

Mr. Justice LeBel (in translation): "The appellant has not shown that this Court should intervene to reverse the judgments of the courts below. Based on the constitutional principles governing the division of legislative powers, the impugned regulatory provision is within the limites of the provinces' legislative authority over local trade. Also, the provision respecting the colour of margarine was authorized by the enabling legislation, the words of which are clear. Furthermore, the statutory interpretation arguments drawn by the appellant from provincial and international trade agreements have no effect on the validity of this provision. Finally, the appellant's freedom of expression is not compromised in light of the scope this Court has previously attributed to that fundamental freedom. For these reasons, the appeal is dismissed without costs."

LEAVES TO APPEAL DISMISSED
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TORTS: DEFAMATION
Did the Court of Appeal below use a strict literalist reinterpretation of the words to characterize them as facts, notwithstanding an unchallenged determination by the jury they are opinions, resulting in the comments not being viewed in context, and thereby causing a serious upset to the appropriate balance between free speech and reputation values. Is there a special rule for the fair comment defence where there are allegations of corrupt or dishonourable conduct, or of criminal matters.
Zbigniew Belz, et al. v. Elizabeth Rogacki (Ont. C.A., September 1, 2004) (30593) "with costs"

IMMIGRATION
Can the federal Refugee Protection Division deny a person who faces torture refugee protection on the basis that the person has committed an economic crime. Does the existence of a warrant for arrest for embezzlement for a sum of money issued by a country with a poor human rights record plus the possession by a person of money of a comparable amount, without more, amount to a serious reason to believe that the person has committed the crime of embezzlement.
Rou Lan Xie v. The Minister of Citzenship and Immigration (Fed. C.A., June 30, 2004) (30550) "with costs"

ENVIRONMENTAL LAW
Did the Federal Court of Appeal below err by interpreting section 74 of the Canadian Environmental Assessment Act, by concluding that its provisions excluded the McClean Lake Project facilities from a mandatory environmental assessment under the Act.
Inter-Church Uranium Committee Education Co-Operative v. Atomic Energy Control Board and Cogema Resources Inc. (Fed. C.A., June 4, 2004) (30510) "with costs to the respondent Cogema Resources Inc."

INEFFECTIVE ASSISTANCE OF COUNSEL
Where a party to a civil action has received ineffective assistance from trial counsel, and a miscarriage of justice has allegedly occurred, is the ordering of a new trial necessitated. In what circumstances should a mistrial be declared based on a breakdown in the relationship between client and counsel. Is it an abuse of the court's process to permit a party to a civil appeal to argue ineffectiveness of trial counsel as a ground of appeal where that party has exercised a direct right of action against trial counsel for negligence and that action has been settled.
Donald Williams v. Debbie White, et al. (Ont. C.A., August 23, 2004) (30567) "with costs to the respondents Debbie White, Lynn Kantautas, the Durham Regional Police Services Board, The Children's Aid Society of Durham Region, Maria D'Assisi and Irene Johnson"

TORTS: OCCUPIERS' LIABILITY
Here a murder was committed in the parking lot of a nightclub that was located in a strip mall, and an action in tort was commenced by family members of the deceased alleging a breach of the Ontario Occupier's Liability Act. What is the standard of care for the provision of security by occupiers in this context, what is the relationship between deterrence and causation.
Marilyn Ortega, et al. v. 1005640 Ontario Inc. carrying on business under the name and style of Calypso Hut 3, 1230 Sheppard Centre Inc., et al. (Ont. C.A., June 11, 2004) (30489) "with costs"

CROWN LAW: INJUNCTIONS
Here an interlocutory injunction was granted restraining the Deputy Minister of Justice from terminating the respondent's employment. In conducting the preliminary assessment of the merits of the case for an injunction to mandate that an agreement be adhered to, should a court apply the lower threshold of the merits of the case typically applied in non-mandatory injunction cases to those applications for interlocutory mandatory injunctions in which the higher onus would otherwise apply. Are dispute resolution provisions specified in a memorandum of agreement to be followed, and can a court rely on those dispute resolution procedures to establish an illegal act on the part of the employer. What is the irreparable harm threshold for an interlocutory injunction, and should it include an examination of the economic impact of the loss of employment or income or benefits will have on an individual and his family. Is interlocutory injunctive relief available against the Crown or an officer of the Crown, and if so, under what circumstances.
The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia v. Terrance L. Smith (N.S. C.A., September 15, 2004) (30616) "with costs"

Legal issues as above.
The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia v. Dennis Connolly (N.S. C.A., September 15, 2004) (30617) "with costs"

EMPLOYMENT LAW
Did the Court of Appeal err in the following two respects: by failing to find that the respondent owed a fiduciary duty to the applicant insofar as the respondent was in possession of the applicant's property, and by failing to find the respondent's pension plan created a trust relationship between the respondent and the applicant.
Frederick McLaughlin v. Air Canada (Ont. C.A., March 5, 2003) (29776) "without costs"

UNJUST ENRICHMENT
In the context of a gift by one common law partner to the other common law partner while they were living together, and the subsequent termination of that relationship, what in law is unjustified enrichment pursuant to ss. 1493 and 1806 of the Civil Code of Quebec.
Jean-Pierre Jolicoeur v. Monique Dussault (Que. C.A., October 22, 2004) (30678) "with costs"

CRIMINAL LAW
Did the Court of Appeal below err by its ruling on proof of identification in a voire dire. How does this fit with an exception to the res gestae rule.
Alexander Szabo v. Her Majesty the Queen (Que. C.A., September 3, 2004) (30585)

LABOUR LAW: ACCREDITATION
Is it manifestly unreasonable for the commissaire du travail du Québec to permit and accreditation for a union by a quarter of the workforce in a business, and did the Court of Appeal below err by concluding that the decision is made by the Commission des relations du travail was sufficiently protected by procedural fairness.
Abattoir Saint-Alexandre (1982) Inc. v. Travailleurs et travailleuses unis de l'alimentation et du commerce, section locale 503 (Que. C.A., October 29, 2004) (30598) "with costs"

TAX: FALSE STATEMENT
The applicant was convicted of making a false statement on his tax return contrary to s. 239 (1)(a) of the federal Income Tax Act. Is the law on the level of mens rea with regard to section 239 sufficiently settled since R. v. Paveley (1976), 30 C.C.C. (2d) 483 (Sask. CA.). Does an honest, but mistaken, belief about invalidity have a different effect than a mistaken belief about the applicability of the Income Tax Act. Did the Court of Appeal below confuse reasonableness of the belief of the accused and availability of alternate legal remedies with the necessary intent, thereby setting-up a reasonableness test of a belief imposing a burden of proof upon the accused, which at criminal law can never be imposed in a complex statute like the Income Tax Act where the issue is knowingly making a false statement.
Jack Klundert v. Her Majesty the Queen (Ont. C.A., August 30, 2004.) (30578) "without costs"

Legal issues as above.
Paul Joseph Ricci v. Her Majesty the Queen (Ont. C.A., October 14, 2004) (30684) "without costs"

MOTION FOR RE-HEARING: POST-JUDGMENT INTEREST
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Pacific National Investments Ltd. v. Corporation of the City of Victoria (29759)

"The motion to extend the time to apply for a re-hearing is allowed and the motion for a re-hearing is dismissed without costs. The issue sought to be clarified by re-hearing is conclusively addressed by s. 50 of the Supreme Court Act, R.S.C. 1985, c. S-26. In accordance with that section, interest at post-judgment rates accrues from the time of the trial judgment through to the judgment of this Court and beyond until paid."

CURRENT COURT SESSION
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Court is not sitting this week.

NEXT COURT SESSION
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Monday, April 11, 2005 - Friday, June 17, 2005

NEXT MOTION DAY
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Monday, April 11, 2005

WHO WE ARE, WHAT WE DO
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Think of us as 911 Supreme Court: we specialize in assisting lawyers taking cases to the Supreme Court of Canada:

  • Leaves To Appeal
  • Applications to Intervene
  • Drafting/Revising Factums
  • All Interlocutory Applications
  • Stays of Procedure and Execution
  • Constitutional Questions
  • Technical Compliance with Supreme Court Rules
  • Overall Strategic Advice
  • Write/ghostwrite leave to appeal and appeal factums for lawyer-clients: Marie-France has a Masters from Oxford and a Doctorate from Berkeley, Jeff a Masters from York, and I've a Masters and Doctorate from McGill.

We're happy to put pen to paper/fingers on the keyboard for you: we will research, strategize & write the factum, with you seeing and approving each draft. WE'RE LAWYERS TOO.

COURT OF APPEAL WEB SITES
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Below is a list of available C.A. Web sites. For your quick access, all are hyperlinked. Dedicated Web sites for some jurisdictions are not yet up (when they are we'll add them on), but in the meantime, many Court of Appeal decisions from these jurisdictions are available at the more generalized "canlii" sites noted (& hyperlinked) below:

Alberta: www.albertacourts.ab.ca
British Columbia: www.courts.gov.bc.ca/ca
Manitoba: www.canlii.org/mb/cas/mbca
New Brunswick: www.canlii.org/nb/cas/nbca
Newfoundland: www.canlii.org/nl/cas/nlca

Nova Scotia: www.courts.ns.ca/Appeals/index_ca.htm
Ontario: www.ontariocourts.on.ca/appeal.htm
Prince Edward Island: www.canlii.org/pe/cas/pescad
Quebec: www.tribunaux.qc.ca/mjq_en/c-appel/index-ca.html
Saskatchewan: www.sasklawcourts.ca
Nunavut: www.canlii.org/nu/cas/nuca
Northwest Territories: www.justice.gov.nt.ca/dbtw-wpd/nwtjqbe.htm
Yukon: www.canlii.org/yk/cas/ykca
Federal Court of Appeal: decisions.fca-caf.gc.ca/fca
Court Martial Appeal Court: www.cmac-cacm.ca/index_e.html

WEB SITE OF THE WEEK: Law blogs (or "blawgs")
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I haven't gone actively looking to see if there are any good Canadian law blogs (if there are, let me know), but one that I did come across is a daily/weekly blawg maintained by Matthew Lerner, who's a civil litigator in Albany, New York - as it says on the home page "A forum for New York Appellate Law, Civil Procedure, Insurance Coverage and Defense and other interesting issues".

I've been looking at it for the last couple of months, and it's actually quite interesting, even though it is American - for example, the March 16th entry deals with "Upcoming Case in New York Court of Appeals - Vicarious Liability Issue" (my colleague Marie-France and I had to write a factum dealing pretty much with this issue), and the March 10th entry concerns "New York State Department of Insurance Issues Two Important Coverage Opinions", dealing with what the law requires insurers to put in "reservations of rights" letters, and with regard to IME's (independent medical examinations) in a no-fault context.

Here's the link: http://nylaw.typepad.com/new_york_civil_law/

LAST WORD: March break - the right thing to do
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Got back on the weekend from March Break with Giovanna and three (of the four) kids. Went to Cave Creek, Arizona. Nothing to do and lots to do all at the same time. Cycled a lot with the youngest two, Mélanie (15) and Morgan (13), and the three of us even competed in a National Mountain Biking competition that happened to be on nearby - competed against American pro riders (the three of us agreed there's a certain distinctive honour in finishing last, if one doesn't count the half dozen guys that bust tires with no spares and had to walk back - I broke my chain, but only three miles from the end, so could run the rest). Mélanie and Morgan actually did well, even though they said they felt "funny" not being dressed up like a spandex Christmas tree as the pros were.

On the way back after the race we drove past a French restaurant, "Le Sans Souci" (no worry, no cares) - made me think of my French grandmother, Madeleine Thorel. Madeleine was 14 when my grandfather John Doig (18/19) met her in Normandy during WWI, and said he'd go back and find her when the War was over. He did. He spoke no French, she spoke no English, but love spoke for them both, and they moved to Scotland and married. Madeleine told me that she had agreed to marry John (she called him Jean) on two conditions: children are baptized Catholic, and she gets to choose the names. So in Scotland I grew up Catholic (relatively rare), with a mother called Bernadette, an aunt called Thérèse, another aunt called Madeleine, as well as an uncle called, of all things in Scotland, Théodore - guaranteed the only Théodore in the whole country. Some of the grandkids got French names too - like me, or my cousin Madeleine, or another cousin Colette who now lives in Edmonton. Madeleine Thorel would have liked "Le Sans Souci" though she never went out to restaurants - she said she cooked too well at home, and John Doig never suggested otherwise.

Each of the five boys in my own family had weekly chores to do, and mine was to do my grandmother's "messages" (groceries), which I'd cycle over to do every Saturday morning - and if it was cold she'd put on a coal fire, toast me the heel of the 'plain bread' with a fork over the fire, drop in small cubes of cold butter to steam down into the thick (and often singed) toast - and she herself would have "un petit sherry" and play Edith Piaf records, telling me stories and showing me photographs. She wasn't at all fluent in English, and she would mix French and English together, using French words whenever she'd forget. Two phrases that stand out are "Go chercher your bicyclette" and the not-mixed-up "Je me souviens de ça" (I remember that). Would have liked to have had lunch with Grandmère Madeleine at "Le Sans Souci" in Arizona - might have been her first lunch out ever.

But Giovanna and I did have lunch, with Mila Webster from Phoenix last week, whose husband Gerry Webster died a month ago. Mila and Gerry are actually the reason we were in Arizona for March break to start with, and therefore the reason indirectly that me and two of the kids were out cycling in the desert. Whereas Madeleine Thorel is a product of WWI, Gerry Webster is a product of WWII. The reason that Giovanna and I connected with Gerry is that ten years ago we had our basement completely renovated for our blended-family kids, and hired a project manager to help design it with us and oversee the construction. After it was done, we had become friends with Donna, the project manager, who told us she had a house in Cave Creek Arizona, near her in-laws, because her father-in-law had fought with the Canadian Forces through Italy in WWII, had breathed in bad stuff, become an engineer afterwards in the Hamilton Ontario steel mills (more bad stuff breathed in) and had retired to a desert climate - and we could borrow her house for a week.

So ten years ago off we go to Cave Creek, and across the street we meet Alan and Roseanne Simberloff, whose family was originally Russian Jews, but now living in New Jersey running a meat and poultry distribution business. Though Alan and Roseanne were more than a generation older than us, we walked with them early in the mornings among the cactuses (cacti?) and the odd coyote, got to know them, and had lunches with them as well. At the end of the week they said: We like you, you seem to like us; Gerry and Mila's house over there is for sale, not yet listed with an agent, why don't you buy it? We said what a joke, we have partnership loans at our separate law firms, recently bought a house for us and the kids with a far-too-high-mortgage, just renovated the basement for the kids, have four kids between us, we live 3,000 miles away, and besides we have no money (we're only here because it's free). They say okay, but let us show you the house and some of their photos, because "Gerry is a wee bit Scottish, and Mila is a wee bit Italian, like you guys". Intrigued, we go visit the house, thinking we'll see bagpipes and pasta, and in the entryway we see an old black and white photo of a family wedding of about fifty people hugging and smiling. Alan goes along the first row and says "Treblinka, Bergen Belsen, disappeared, Auschwitz, don't know, don't know". More than two-thirds gone. We say how can Gerry and Mila be a wee bit Scottish, a wee bit Italian?

A summary of what Alan tells me is this:

• Gerry Webster's original name is Herr Gerhard Weber, born and grew up in Koenigsberg, Germany. A German Jew, though in fact raised by a Lutheran minister (Gerry did not realize his ethnic background, or that he was Jewish, until age 11).
• Kristallnacht happened (Jewish people beaten up in the streets, and Jewish businesses damaged and demolished; Kristall = glass, nacht = night).
• Gerry managed to get a ticket to London, and from there got a ticket on a steamer to America.
• He called home, found out it was getting much worse, and was told 'travel on and go to America'.
• Instead he went to a British Army recruiting station to sign up. War had now broken out, he only spoke German, and the English officer (through a translator) told him "you're a German national, we are at war with you, we don't know who or what you are, and I really should intern you". Gerry told him he was more Jewish than German.
• The officer said he'd send Gerry to work on a Scottish farm for a year to learn English, and Gerry could re-apply a year from now. So Herr Gerhard Weber went off to a farm in Inverness (an approximate equivalent of being interned) and learned English (or an approximate equivalent thereof - he was in the Scottish Highlands after all). During that year, Herr Gerhard Weber became Gerry Webster.
• Gerry Webster fought side-by-side, as a German Jew, with Scottish, English, Welsh, Irish and Canadian soldiers through Europe, and survived. Many did not. And God knows many of Gerry's relatives did not survive either.
• After being de-mobbed at the end of the war, Gerry went to the steamship company with his 5-year-old outdated ticket that he'd kept. When he told them what he'd been doing the last five years, they sailed him to New York City.
• Gerry settled down in Rockford, Illinois, became an engineer, and set up and ran a successful tool and die business. In Rockford, Illinois, he met Mila, an Italian-born Jew - and they married and had two girls. In the late 70's, they retired to Cave Creek, Arizona.
• And now their home - a wee bit Scottish, a wee bit Italian - was for sale - because they were now elderly and wanted to move to Phoenix (about an hour away) to be near hospital services (there are none in Cave Creek, there's not even a taxi).

Giovanna and I met them that evening for the first time. Gerry spoke English with a strong German accent, but if you listened carefully, you could tell there was a Celtic brogue there as well, and he would also now and then use a word that though English, was more commonly used by Scots. Mila was introduced to Giovanna, and hearing the name "Giovanna" said (in Italian) "Do you speak Italian?". Mila hadn't spoken Italian in almost 50 years, but to me (with my food-based Italian vocabulary) seemed completely fluent with Giovanna (Italian is Giovanna's first language, though born in Canada). Mila starts to cry. Giovanna starts to cry. Gerry starts to cry. I bawl too.

At 3:00 a.m. that night (we couldn't sleep) we decide we'll go to an ATM next morning, take out $250 each on our credit cards, and give Gerry and Mila $500 as a deposit. They took the deposit, and a few months later we bought the house.

Arizona is now a part of our kids' lives, and a part of ours also. We go twice a year, on March Break with the kids, and in the fall, just the two of us. Giovanna's parents, Vittoria and Domenic, often come too. We would drive in to Phoenix and go see Gerry and Mila just about every time we are there.

Gerry died last month after open-heart surgery. When we were in Arizona last week Giovanna and I invited Mila and her grandson Abraham to the house in Cave Creek for lunch, and I told Abraham his grandfather was a Jewish German Scottish American hero, and that I was proud. Abraham did not know about the year Gerry had spent in Scotland.

I am a direct progeny of two World Wars - my grandfather fought in the first, and my father in the second (in East Africa) and if either didn't return, I simply wouldn't be here. I am so blessed, so lucky, that neither me nor any of my kids (at least yet) have had to do, had to give, what so many others did. I now live in a country where, in one province "Je me souviens" is so axiomatic it's on licence plates. And every time I drive behind a Québec car I think of Madeleine Thorel, and how it really should be, as she would say, "Je me souviens de ça". And I also think of Herr Gerhard Weber - a wee bit Scottish, a wee bit Italian. I would have loved to introduce my grandmother to Gerry, and also to Mila.

My grandfather did the right thing in going back to France after the war to find Madeleine. Madeleine did the right thing in accepting his invitation to marry. Gerry did the right thing, a brave thing, going back to liberate his country - and Mila did the right thing too, marrying that brave special man. In a tiny, small, infinitesimal way, Giovanna and I also did the right thing in buying Gerry and Mila's home. Sometimes the right thing - for entirely emotional reasons - is simply the right thing to do.

END STUFF
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Suggestions for the Last Word and Web Site of the Week are welcome. Sources acknowledged, of course.

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Eugene Meehan, Q.C.
Chair, Supreme Court Practice Group
Lang Michener
300 – 50 O'Connor Street
Ottawa ON K1P 6L2
Phone: (613) 232-7171
Fax: (613) 231-3191
Ontario, Alberta, Yukon, NWT & Nunavut
Licenced to Practise Law in the State of Arizona, U.S.A.
emeehan@langmichener.ca
http://www.supremecourtlaw.ca

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