The Supreme Court of Canada will hear five appeals this week, notably Wednesday’s hearing of Nevsun Resources’ appeal of its conviction of human rights abuses of miners at an Eritrean mine in which it held a majority industry, and, on Friday, whether defence counsel’s legal fees can be paid from the proceeds of crime forfeited to the state. The remaining appeals concern the revocation ad nutum of gifts between spouses in Quebec, an audit of a Calgary bitcoin company by Quebec’s revenue agency,
Jan. 21 – Quebec – R.S. v. P.R.
Family law: This case concerns the exercise of discretion on the ground of lis pendens provided for in article 3137 of the Civil Code of Quebec (the “Code”), which authorizes a court to stay its ruling where an action between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that that action can result in a decision which may be recognized in Quebec. The focus of this case is the possible recognition in Quebec of a decision applying article 1096 of the Code civil belge (the Belgian Civil Code), which provides for the revocation ad nutum (at will) of gifts between spouses. The parties are Belgian citizens who were residing in Quebec when they commenced parallel divorce proceedings.
Jan. 22 – Quebec – 1068754 Alberta Ltd. as sole trustee of the DGGMC Bitton Trust v. Agence du revenu du Québec
Financial institutions: The Agence du revenu du Québec sought bank documents relating to DGGMC, a trust of which 1068754 Alberta Ltd. was the sole trustee. The documents in question were held by a branch of the National Bank of Canada located in Calgary. DGGMC was being audited under Quebec’s Taxation Act (CQLR, c. I-3) because the Agence suspected that it was required to pay taxes in Quebec. Quebec’s Superior Court dismissed 1068754 Alberta Ltd.’s application to quash the demand for documents made by the Agence, finding that the demand was not a seizure. The Court of Appeal dismissed 1068754 Alberta Ltd.’s appeal, holding that the demand for documents was a seizure but that it did not have extraterritorial effect under the applicable provision of the Bank Act, and that the Agence had not exceeded its jurisdiction.
Read the appellate court decision here.
Related legal bulletin:
Ruling extends reach of taxman’s demand letters; Law in Quebec
Jan. 23 – British Columbia – Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al.
Public international law: The respondents are Eritrean refugees who sought to bring a representative claim against the appellant, a publicly-held B.C. corporation. They allege that through a chain of subsidiaries, the appellant entered into a commercial venture with Eritrea for the development of a gold, copper and zinc mine there. The appellant allegedly engaged the Eritrean military and military controlled corporations and was complicit in the use of forced labour at the mine, conscripted under Eritrea’s National Service Program. The respondents bring claims of private law torts as well as breaches of peremptory principles of international law for which they seek damages at customary international law. The appellant denied that the respondents were subjected to forced labour or mistreatment and argued that the military and its personnel were not subject to the control, direction or supervision of the appellant or of the mining company in which the appellant has a 60 per cent indirect interest.
The Supreme Court of British Columbia granted the appellant’s motion to deny the proceeding status as a common law representative action but dismissed the appellant’s motions to stay, dismiss or strike aspects of the respondents’ claims on the basis that either Eritrea is the forum conveniens, or that the claims are precluded by or have no reasonable chance of success due to the act of state doctrine or the inapplicability of customary international law. The Court also held that certain secondary evidence filed by the respondents was admissible for the limited purpose of providing social and historical facts for context. The Court of Appeal for British Columbia dismissed the appellant’s appeal.
Read the appellate court decision here.
Related law firm bulletin:
The SCC Decides to Hear an Important Case on Transnational Corporate Liability; Langlois lawyers
Related scholarly articles and bulletins:
Nevsun lawsuit (re Bisha mine, Eritrea); Business & Human Rights Resource Centre
Case Note: Case of Araya v. Nevsun Resources Ltd. in the Canadian Courts; University of Ottawa
Case Comment: Forum non Conveniens and Liability for Alleged Human Rights Violations – The Nevsun Resources Ltd. Case; The Philippe Kirsch Institute
Jan. 24 – Quebec – Transport Desgagnés Inc., et al. v. Wärtsilä Canada Inc., et al.
Constitutional law: In 2006, Desgagnés purchased marine engine parts for one of its vessels from Wärtsilä. The parts were delivered and installed in 2007. The engine failed in 2009, engendering damages of $5,661,830.33 for Desgagnés. The contract limited Wärtsilä’s liability in both scope and time. Desgagnés instituted proceedings against Wärtsilä for the recovery of its damages.
The Superior Court of Québec ordered Wärtsilä to fully indemnify Desgagnés, ruling that provincial law governed the dispute, and that the contractual limitations of liability were rendered inapplicable by the Québec Civil Code’s provisions on warranties. The majority of the Court of Appeal of Québec set aside the trial judgment, ruling that Canadian maritime law exclusively governed the dispute, and that the contractual limitations of liability were thus applicable. The dissent sided with the Superior Court’s conclusions.
Read the appellate court decision here.
Related legal bulletin:
Sale of Marine Crankshaft - Product Liability - Defects -Exclusion Clause - Application of Provincial Law; CanLII Connects
January 25 – Ontario – Rafilovich v. R.
Criminal law: Yulik Rafilovich was charged with multiple offences. When executing search warrants in relation to the offences, the police seized $41,130.51 (Cdn) and $651 (US). Mr. Rafilovich had no monies available for legal fees and did not qualify for legal aid. He applied pursuant to s. 462.34(4) of the Criminal Code, R.S.C. 1985, c. C-46, to be permitted to utilize the seized funds to meet reasonable legal expenses. On October 26, 2009, Macdonald J. of the Superior Court of Justice granted the application and ordered all seized funds to be released to defence counsel to meet Mr. Rafilovich’s legal expenses. Rafilovich pleaded guilty to five charges. The seized funds were determined to be proceeds of crime. At the sentencing hearing, Crown counsel in part requested an order imposing a fine in lieu of forfeiture of $41,976.39 (Cdn). The sentencing judge decided to not grant a fine in lieu of forfeiture. Crown counsel appealed. The Court of Appeal allowed the appeal and ordered the fine in lieu of forfeiture.
Read the appellate court decision here.
