Today at the SCC: 8 Leaves
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Leave Applications: 8 Dismissed
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Dismissed
Civil Litigation: Representation By Non-Lawyers
M.L.R. v. British Columbia (Ministry of Education), 2020 BCCA 324 (39729)
The Applicants applied for leave to have Dr. Ayangma, a non‑lawyer, to represent them in two legal proceedings they had brought before the B.C.S.C. Although Holmes J. acknowledged the court had discretion to allow representation by a non-lawyer based on the court’s assessment of the interests of justice, she found Dr. Ayangma’s participation in this appeal was not likely to further the interests of justice. The Applicants applied for an extension of time to file a motion for leave to appeal. The motion was filed approximately 18 months late. The extension of time was denied. Dr. Ayangma was granted leave to present oral arguments on appeal. On the assumption the decision was open to appeal, the B.C.C.A. dismissed the appeal. "The motion for a stay of execution is dismissed. The application for leave to appeal...is dismissed."
Civil Litigation: Settlements
Hickey v. North Atlantic Marine Supplies & Services Inc., 2021 NLCA 4 (39663)
Ms. Hickey commenced an action for damages and pay in lieu of notice following her dismissal from employment by North Atlantic Marine Supplies and Services Inc. Counsel commenced negotiations to settle the claim. Based on counsel’s communications, Ms. Hickey claimed a settlement agreement had been reached. A motions judge granted summary judgment to Ms. Hickey. The N.L. C.A. allowed an appeal and set aside the summary judgment. "The application for leave to appeal...is dismissed with costs."
Civil Litigation: Solicitor-Client Privilege
0678786 B.C. Ltd. v. Bennett Jones LLP, et al., 2021 ABCA 62 (39578)
There is a publication ban in this case, as well as a sealing order. Certain information is not available to the public, in the context of the status of lawyer-made notes and alleged conflict of interest. "The application for leave to appeal...is dismissed with costs."
Creditors' Remedies: Guarantees
Mill Street & Co. Inc., et al. v. Madison Joe Holdings Inc., 2021 ONCA 205 (39692)
A purchase of shares was financed with a lending agreement with a bank and promissory notes backed by guarantees. When the notes matured the notes holder demanded payment of principal and interest. The bank exercised a right under the lending agreement and refused to consent to the payments. A motions judge granted summary judgment against the principal debtor for the interest due under the notes and against the guarantors for both the principal and interest due under the notes. A majority of the Ont. C.A. dismissed an appeal. "The application for leave to appeal...is dismissed with costs."
Criminal Law: Legal Status of Electric Scooters
Ghadban v. R., 2021 BCCA 69 (39632)
The Applicant, Mr. Ghadban, was charged with driving without a driver’s licence and without insurance after riding his electric scooter, a Motorino XMr, on a public road. Mr. Ghadban believed his electric scooter fell within the definition of “motor assisted cycle” so he did not require a driver’s licence and insurance to operate it. The electric scooter can be pedalled but its motor cannot be used while pedaling. It either operates as a low-powered electric motorcycle, with the motor providing all of the motive force, or as a heavy bicycle, with the motor not operating. The Provincial Court held the electric scooter was not a motor assisted cycle because its primary method of propulsion was not human power. The B.C.S.C. and a majority of the B.C.C.A. dismissed Mr. Ghadban’s appeals, agreeing the Provincial Court made no error of law. The majority of the B.C.C.A. held motor assisted cycles must be designed to contemplate human power being a primary means of propulsion, and must allow for a person to pedal at the same time as the motor is providing assistance. "The application for leave to appeal...is dismissed."
Criminal Law: Possession for the Purposes/Proceeds of Crime; Search Warrants
Gero v. R., 2021 ONCA 50 (39665)
The Toronto Police Service received a tip from a CI that the CI had recently purchased drugs from the Applicant, Mr. Gero, at his apartment. A search warrant was executed. During a search of the Applicant’s apartment, the police found packaging materials, two digital scales, an electrical grinder covered in drug residue, a drug press, cocaine, Oxycocet pills, and cash. The Applicant challenged the validity of the search warrant pursuant to ss. 7 and 8. Both of the lower courts held the step six procedure does not breach s. 7 or s. 8. The Applicant was convicted of two counts of possession of a controlled substance for the purpose of trafficking and one count of possession of the proceeds of crime. The Applicant’s appeal was dismissed. "The motion for leave to intervene filed by the Criminal Lawyers’ Association is dismissed. 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."
Patents/Pharmaceuticals: Patent Validity
Apotex Inc. v. Shire LLC, 2021 FCA 52 (39662)
The Shire Respondents (“Shire”) own the 646 Patent entitled “Abuse Resistant Amphetamine Compounds” related to the compound lisdexamfetamine (“LDX”), its compounds, methods of delivery and use in the treatment of Attention Deficit and Hyperactivity Disorder. An important drawback to both immediate and sustained release formulations of amphetamine is their potential for abuse. The 646 Patent addressed the need for an abuse-resistant dosage of amphetamine that was therapeutically effective. Apotex Inc., a generic drug manufacturer, served Notices of Allegation on Shire, seeking to obtain a Notice of Compliance from the Minister of Health to market its generic version of LDX under the Patented Medicines (Notice of Compliance Regulations). Shire responded by filing prohibition applications under s. 6(1) of the Regulations, to prevent the Minister from issuing a NOC to Apotex until after the expiry of its 646 Patent. Apotex also commenced an impeachment action under s. 60 of the Patent Act for declarations the 646 Patent was invalid on the grounds of anticipation, obviousness, overbreadth or insufficiency of specification. The Fed. Court dismissed the impeachment action and granted the order of prohibition sought by Shire. These decisions were upheld on appeal. "The motion to join two Federal Court of Appeal files in a single application for leave to appeal is granted. The application for leave to appeal...is dismissed with costs."
Police: Assault, With Weapon; Bodily Harm
St. Louis v. R., 2021 QCCA 244 (39634)
The Applicant, Guillaume St‑Louis, was a police officer who was tried for his alleged actions during the arrest of the complainant, Alexandre Hébert, when Mr. Hébert was driving in the residential neighbourhood where he lived. The reason given by Mr. St‑Louis for stopping the complainant was his car windows were tinted too darkly. Three charges were laid against Mr. St‑Louis under the Criminal Code: assault with a weapon under s. 267 (a), assault causing bodily harm under s. 267 (b) and careless use of a prohibited weapon under s. 86(1) . At trial, the Applicant and the complainant testified and gave diametrically opposed versions of the events surrounding the complainant’s arrest. The Court of Québec judge found Mr. St‑Louis guilty of assault with a weapon under s. 267 (a) and assault causing bodily harm under s. 267 (b). He entered a stay of proceedings on the count of assault with a weapon under s. 267 (a) based on the rule against multiple convictions. Mr. St‑Louis was acquitted of careless use of a prohibited weapon under s. 86(1). The Superior Court, sitting as a summary conviction appeal court, dismissed the appeal from the conviction. The Qué. C.A. dismissed the appeal. "The application for leave to appeal...is dismissed."
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Appellate Extras
Featured Court of Appeal Decision
We also track what’s happening in the appellate world before it gets to Canada’s highest court. Below is this week’s featured Court of Appeal decision from our Appellate Monthly newsletter.
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Exactly When Does The Clock Begin To Run For You To File Your Appeal?
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Upcoming SCC Hearings
For a full list of upcoming Supreme Court of Canada hearings and a quick look at what they’re about, check out our annotated appeal schedule.
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Last Word
Fantasy Courts: Season 6 Winners & Recap
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The release of Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 marked the end of season 6—a jam-packed season that included 19 appeals (with three of those being the carbon tax appeals dealt with in a single decision). The SCC had dissents in 11 of their 17 decisions making it difficult to keep those prediction streaks intact. In six of those split decisions, there were three or more sets of reasons.
The season saw a strong start, with many players getting the first five correct, which included the carbon tax appeals. The first challenging case was Ontario (Attorney General) v. Clark, 2021 SCC 18 in which only 36% correctly predicted that it would be allowed. The SCC ruled police officers cannot sue Crown prosecutors for decisions they make about how to conduct a criminal case.
The next hurdle was midway through the season with MediaQMI inc. v. Kamel, 2021 SCC 23, which saw the Court split 5:4. Only 22% correctly predicted the appeal would be dismissed. The majority ruled that a media company could not access court documents that had been filed, and then removed, from a civil lawsuit once proceedings ended.
The decision that most players got wrong was Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, which featured a 4:3 split. Only 4% correctly predicted the appeal would be dismissed. In a result that seemed (to some) to go against access to justice concerns, the majority ruled that it was unconstitutional to raise the monetary value of cases that can be heard by the Court of Québec.
Congrats to all our Season 6 winners, and thank you to everyone for playing. Our top 3 (Scott M., Lindsay Frame and Adil Abdulla) will receive Amazon gift cards.
We’re expecting a steady flow of decisions to be released over the next few months, which started last week with Toronto v. Ontario, 2021 SCC 34 and marked the beginning of Season 7— resetting the prediction streaks.
Not signed up already? Make sure to sign up to play so you can be notified when there’s a new SCC decision to predict.
Best of luck in season 7!
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About Supreme Advocacy LLP
We're a boutique law firm specializing in:
- SCC advocacy and agency
- ghostwriting factums at all appellate levels
- preparing complex legal opinions and legal research
Our team of lawyers consists of:
- Eugene Meehan, Q.C., former Executive Legal Officer at the SCC, Masters and Doctorate in Civil Law from McGill University, Queen's Counsel.
- Marie-France Major, former SCC law clerk, Masters from Oxford University, and Doctorate in law from UC Berkeley.
- Tom Slade, former Editor-in-Chief of the Ottawa Law Review, journalism degree from Carleton University, and law degree from University of Ottawa.
- Cory Giordano, Bachelor of Arts (Honours) degree from Queen’s University and Juris Doctor from University of Ottawa.
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End Notes
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