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This week at the SCC

|Written By Elizabeth Raymer

The Supreme Court of Canada will hear five appeals this week, two of them of criminal law decisions — and the first of which involves a young person appealing a conviction on the basis of length of time elapsed before his trial concluded pursuant to the guidelines established in R. v. Jordan. The civil cases concern Carleton University’s attempts to recoup pension payments to a professor later determined to be dead; and a PR firm's tangle with the City of Montreal over unpaid invoices.

Feb. 19  – Alberta – K.J.M. v. R.

Criminal law: The appellant, a young person, was convicted of aggravated assault and possession of a dangerous weapon. He applied for, and was refused, a stay of proceedings on the basis that the 18 and a half months that had elapsed between the time he was charged and the time his trial concluded was unreasonable within the meaning of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and breached his s. 11(b) Charter right. The appellant appealed his conviction, arguing that the delay had not been properly assessed under Jordan. A majority of the Court of Appeal dismissed the appeal. Justice Barbara Veldhuis J.A. would have allowed the appeal and entered a stay of proceedings on the basis that the trial judge erred in her assessment of the presumptive ceiling applicable to young persons facing single-stage criminal proceedings in provincial court and in relying on the “clearest of cases” principle in her assessment of the transitional exception.

Read the appellate court decision here.

Feb. 20  – QuebecVille de Montréal v. Octane Stratégie inc.

Municipal law: To prepare for the launch of its transportation plan, Ville de Montréal (City) retained Octane Stratégie inc., a public relations and communications firm, not long before the planned launch date of May 17, 2007. At a meeting with the company at city hall the month before, Richard Thériault, director of communications and administration in the office of the mayor, is alleged to have awarded four mandates to Octane, two of which involved preparing the concept for the launch and organizing the event. Octane then engaged Productions Gilles Blais to assist.

In May 2010, when Octane had still not been paid its final invoice for work performed (including the services of Productions Gilles Blais), it filed a motion to institute proceedings, which it finally served in October 2010. In October 2011, Octane sent a formal notice to Thériault to pay it the amount of $82,898.63 and amended its motion the following month to add Thériault as a defendant. The Superior Court granted Octane’s motion to institute proceedings and ordered the City to pay the amount demanded, plus interest and the additional indemnity. The alternative motion to institute proceedings against Thériault was dismissed. The Court of Appeal dismissed the city’s appeal. Octane’s appeal against Thériault was declared to be moot.

Read the appellate court decision here.

Related law firm bulletin:
Une ville doit-elle payer pour des services reçus sans résolution accordant le contrat? Dufresne Hébert Comeau

Related news release:
Cause Ville de Montréal c. Octane Stratégies - L'UMQ interviendra de façon proactive devant la Cour suprême du Canada; Cision

Feb. 20 – Quebec –  Octane Stratégie inc. v. Richard Thériault, et al.

Municipal law: Companion case to the above.

February 21 – Newfoundland and LabradorR. v. Penunsi

Criminal law: An RCMP officer laid an information pursuant to s. 810.2 of the Criminal Code, stating that he had reason to believe that the respondent, Albert Penunsi, “will commit a serious personal injury offence.” At the time this information was laid, the respondent was serving a sentence and was expected to be released in December 2014. An arrest warrant was issued but never executed. The Provincial Court judge held that s. 515 of the Criminal Code (JIR provisions) do not apply to s. 810.2 Criminal Code applications and he did not have the jurisdiction to have the respondent arrested or impose conditions on his release. Prior to the conclusion of the hearing in the Supreme Court Trial Division, the respondent entered into the s. 810.2 of the Code recognizance by consent. Justice William Goodridge held that s. 515 of the Code applied to s. 810.2 of the Code applications and that the judge erred by refusing to conduct a show cause hearing on the Crown’s request. The Court of Appeal allowed the respondent’s appeal and held that s. 515 of the Code does not apply to s. 810.2 peace bond proceedings.

Read the appellate court decision here.

Related news story:
Crown takes Labrador judge to court, The Telegram

Feb. 22 – Quebec – Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme v. Carleton University

Pensions: The case concerns Carleton University’s legal entitlement to recover amounts it paid to an absentee under a “life only” pension during a period in which the absentee was presumed alive but was in fact dead. In Quebec, absentees are presumed alive for a period of seven years, following which any interested person can apply for a declaratory judgment of death. The presumption of life is temporary, however, and subject to rebuttal. In this case, death was determined some five years following the disappearance of the absentee, which served to set aside the presumption of life. The Act of Death recorded the absentee’s true date of death as the day following his disappearance and not the date upon which proof of death was established.

Claiming restitution under the “reception of a thing not due” provisions of the Civil Code of Quebec, Carleton sought to recover the amounts it considered to have been paid in error to the absentee. It moved to institute proceedings against the appellant, who acted as tutor to the absentee and subsequently as liquidator of his estate. The Superior Court of Quebec found that restitution was possible under the “reception of a thing not due” provisions of the Code, because the pension payments, though initially not made by mistake, became an error once the presumption of life had been rebutted. The conditions for ordering restitution were thus met. The Court of Appeal confirmed the Superior Court’s judgment in most respects.

Read the appellate court decision here.

Related news stories:
Dead Carleton prof's pension case goes to Supreme Court, Ottawa Citizen

Top court to hear appeal of ruling that allowed Carleton U to recoup pension paid to dead prof, Global News

Carleton University can reclaim $500K in pension paid to dead prof, court says, CBC News


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