Matthew Jochen Keen Sullivan

This appeal arose from the dismissal of a class proceeding claiming damages against the Crown for negligence related to the presence of Bovine Spongiform Encephalopathy (BSE) in Canada between 2003 and 2008.

The trial judge dismissed the claim, finding it barred by section 9 of the Crown Liability and Proceedings Act, and also that no duty of care was owed and no negligence occurred.

The Court of Appeal upheld the dismissal, focusing solely on the application of section 9.

It found that various government programs providing financial assistance to cattle farmers in response to the BSE outbreak constituted "compensation" under section 9, thereby barring the negligence claim as it sought double recovery for the same factual basis of loss.

The plaintiff brought a class action on behalf of Canadian cattle farmers against the Government of Canada, alleging negligence in its response to the threat of Bovine Spongiform Encephalopathy (BSE), commonly known as 'mad cow disease'.

The plaintiff claimed that Canada failed to implement a ruminant-to-ruminant feed ban in a timely manner and failed to prevent cattle imported from the United Kingdom from entering the animal feed chain, which led to the discovery of a BSE-infected Canadian cow in May 2003 and the subsequent closure of international borders to Canadian cattle and beef.

The court dismissed the action, finding that the claim was barred by section 9 of the Crown Liability and Proceedings Act because the class members had received compensation through various government financial assistance programs.

Furthermore, the court held that Canada did not owe a private law duty of care to the cattle farmers and that its policy decisions regarding the monitoring of imported cattle and the timing of the feed ban were reasonable and did not breach the standard of care.

The Attorney General of Canada and the Joint Committee representing Class Members brought competing applications regarding the allocation of approximately $236 million in excess capital held in the trust fund established by the 1986-1990 Hepatitis C Settlement Agreement.

Canada argued the excess capital should be returned to it, while the Joint Committee sought to allocate the funds to increase benefits for Class Members.

The court dismissed Canada's application, finding that the excess capital allocation provision was intended to provide an opportunity to bridge compensatory gaps for Class Members.

The court approved seven of the Joint Committee's nine recommendations for allocating the funds, including increases to fixed payments and loss of services compensation, to be implemented by way of special distribution.

The moving co-defendant sought leave to amend its defence to assert crossclaims for contribution and indemnity against a co-defendant arising from an inmate slip-and-fall claim at a correctional institution.

The court held that all substantive aspects of the proposed crossclaim were claims for contribution and indemnity governed by ss. 4, 5 and 18 of the Limitations Act, 2002, including the contractual additional-insured theory.

Although the court concluded that the contribution and indemnity limitation period is subject to discoverability, the moving party failed to provide sufficient evidence of due diligence to rebut the presumption that the claim was discovered when it was served with the main action, or at the latest by discovery when the accident location was pinpointed.

The proposed crossclaim was therefore statute-barred and the motion was dismissed, with costs payable forthwith to the responding co-defendant.

The Attorney General of Ontario appealed a motion judge's decision that allowed an Ontario supervisory judge to sit outside the province with judges from British Columbia and Quebec to hear motions regarding a national class action settlement, without requiring a video link to an Ontario courtroom.

The Court of Appeal held that while superior courts have the inherent jurisdiction to conduct hearings outside their home province, the open court principle under section 135 of the Courts of Justice Act requires a video link to a reasonably accessible Ontario courtroom.

The appeal was allowed to amend the order to require a video link.

The defendants brought a motion to set aside a noting in default after failing to deliver a defence within the time required under the Rules of Civil Procedure.

The self‑represented plaintiffs initially opposed the motion and brought a cross‑motion seeking to remove defence counsel from the record but abandoned their opposition during argument.

The court found the defendants had a reasonable explanation for the delay, had consistently indicated an intention to defend, and had an arguable defence on the merits.

The default was set aside and the defendants were granted leave to deliver a statement of defence within ten days.

The plaintiffs’ motion to remove counsel was dismissed and costs of $1,500 plus HST were awarded to the defendants due to inappropriate allegations made in the plaintiffs’ materials.

The applicant, a federal inmate, applied for a writ of habeas corpus and Charter relief to challenge his security classification, his correctional plan requiring sex offender programming, and the anticipated denial of his statutory release.

The Superior Court of Justice dismissed the application, holding that habeas corpus is not available to review a refusal to transfer to a lower security facility or to challenge a correctional plan.

The court further held that absent a valid habeas corpus claim, it lacked jurisdiction to grant Charter remedies regarding the administration of the sentence, as exclusive jurisdiction rests with the Federal Court.

The challenge to the anticipated denial of statutory release was also dismissed as premature.

The respondents challenged the constitutionality of three Criminal Code provisions relating to prostitution: operating a common bawdy-house, living on the avails of prostitution, and communicating for the purpose of prostitution.

The application judge struck down all three provisions as violating section 7 of the Charter.

On appeal, the Court of Appeal upheld the striking down of the bawdy-house provision (suspended for 12 months) and read in an exploitation requirement to the living on the avails provision.

However, the Court of Appeal reversed the application judge's decision on the communicating provision, finding it did not violate the principles of fundamental justice and was a justified limit on freedom of expression, binding the lower court to the Supreme Court's previous decision in the Prostitution Reference.

The United States sought the extradition of the respondent, a Canadian citizen, on terrorism charges after he was abducted, secretly detained, and abused in Pakistan by Pakistani authorities at the behest of the United States.

The extradition judge granted a stay of proceedings, finding that the human rights violations were shocking and that permitting the proceedings to continue would constitute an abuse of process.

The appellant appealed, arguing the extradition judge lacked jurisdiction and erred in applying the 'clearest of cases' standard.

The Court of Appeal dismissed the appeal, holding that the extradition judge had the residual jurisdiction to stay proceedings for abuse of process to protect the integrity of the judicial system, and did not err in finding this was one of the clearest of cases warranting a stay.

The appellant, a federal offender, had his accelerated day parole suspended by his parole officer's supervisor.

He challenged the suspension by way of habeas corpus in the Superior Court.

The application judge declined jurisdiction, finding that the Corrections and Conditional Release Act (CCRA) provided a complete, comprehensive, and expert procedure for reviewing the administrative decision.

The Court of Appeal upheld the decision, confirming that the CCRA's statutory review and appeal regime falls within the exception to habeas corpus jurisdiction articulated in May v. Ferndale Institution.

The appellant appealed a decision of the Superior Court of Justice regarding the interpretation of the federal Crown Liability and Proceedings Act and the provincial Proceedings Against the Crown Act.

The Court of Appeal agreed with the motion judge's reasons and interpretation of the statutes.

The appeal was dismissed with no costs.

The appellant, a lesbian woman, sought to conceive a child using semen from a known gay donor.

She challenged the definition of 'assisted conception' in the Processing and Distribution of Semen for Assisted Conception Regulations, which exempted women using semen from a spouse or sexual partner from rigorous screening requirements.

The appellant argued this violated her equality and liberty rights under ss. 15 and 7 of the Charter.

The Court of Appeal dismissed the appeal, finding that the exemption was based on health considerations rather than sexual orientation, as women using a spouse's semen are already exposed to any existing risks.

The court also upheld the exclusion criteria for donors over 40 and men who have had sex with men, concluding they were factually based on health risks and not discriminatory.

The appellant received a retroactive lump sum payment for a Canada Pension Plan disability pension and brought a proposed class action claiming interest on the payment.

The Attorney General moved to strike the statement of claim.

The motion judge struck the claims for breach of fiduciary duty and unjust enrichment but allowed the claims based on constructive trust and the inherent power of the court to award interest to proceed.

On appeal and cross-appeal, the Court of Appeal held that it was plain and obvious that none of the claims could succeed, as the comprehensive statutory scheme of the Canada Pension Plan does not provide for the payment of interest on benefits.

The appeal was dismissed, the cross-appeal was allowed, and the action was dismissed.

The appellant, a lesbian, challenged the constitutionality of federal regulations governing semen donation for assisted conception, arguing they discriminated against women using known donors who were not spouses or sexual partners.

Before the application was heard, the appellant successfully self-inseminated and the government amended the regulations, leading the application judge to dismiss the case as moot.

The Court of Appeal upheld the mootness finding and declined to hear the Charter issues as a court of first instance.

However, the Court granted a motion to add another woman in the same situation as a party and remitted her application to the Superior Court for an expedited hearing on the constitutional issues.

The respondent was charged with possession of marijuana in April 2002.

He successfully moved to dismiss the charges on the basis that the prohibition in section 4 of the Controlled Drugs and Substances Act was of no force or effect at the time, following the Court of Appeal's earlier decision in R. v. Parker.

The Crown appealed.

The Court of Appeal dismissed the appeal, holding that because the Marihuana Medical Access Regulations did not create a constitutionally valid medical exemption (as determined in the companion case Hitzig v. R.), the criminal prohibition against possession of marijuana remained of no force and effect when the respondent was charged.