International Law

Megacities, Wal-Mart and the GST - A Sample of the SCC?s January Dozen

By Jeremy Barretto

I have fond memories of Reader’s Digest Select Editions. These hardcover anthologies contained condensed versions of four or five bestselling fiction novels. In this spirit I will depart for the usual TheCourt.ca template of commenting on a single case and instead consider a sample of twelve hearings the SCC has scheduled for January.

Her Majesty the Queen v. Kelly Marie Ellard (B.C.) (Crim.) (As of Right) 2009-01-12
This Motion to Quash is scheduled to be heard on January 12, 2008. The trial judge failed to give a jury special instructions as to the limited evidentiary value of a witnesses statements. The first issue is whether the trial judge’s failure amounts to misdirection. Secondly, the SCC will consider whether the dissent in the B.C. Court of Appeal judgment involves a pure question of law or a question of mixed fact and law. While the former gives rise to a right of appeal, the latter does not.

Her Majesty the Queen v. Duc Van (Ont.) (Crim.) (As of Right) (32681) 2009?01?13
The SCC summarized the facts for this case as follows:

The Respondent, Duc Van, and the victim, Jack Kong, were acquainted through their attendance at casinos and mah?jong gaming houses. On December 20, 2000, the Respondent and Kong went to Casino Niagara together in the Respondent?s van. They returned early on the morning of December 21. Sometime later that day, Kong was stabbed in his apartment and robbed of a substantial quantity of cash. Kong was initially unable to communicate effectively with the police, who initially suspected that the crime might have involved the collection of a loanshark debt associated with Kong?s illegal gambling activities.

Duc Van was convicted of attempted murder at trail but the Ontario Court of Appeal set aside the conviction and entered a stay of proceedings. The issues before the SCC is whether the the Court of Appeal erred in not applying the curative proviso of s. 686(1)(b)(iii) of the Criminal Code. Winkler C.J. dissented on this point at the Court of Appeal and would have dismissed the appeal.

United Parcel Service Canada Ltd. v. Her Majesty the Queen (F.C.) (Civil) (By Leave) (32546) 2009?01?15
On January 15, 2008 the SCC will hear an appeal from the Federal Court of Appeal regarding overpayments of GST by courier company UPS. The company brought shipments into Canada from abroad and overpaid on GST in error. The Minister of National Revenue denied a rebate claim from UPS. The issues before the SCC are whether a person who overpaid GST in error is entitled to a rebate and whether the Minister “should be permitted to retain taxes not properly owing.”

Michel Marcotte c. Ville de Longueuil (Qc) (Civile) (Autorisation) (32213) 2009?01?19
Usinage Pouliot Inc. c. Ville de Longueuil (Qc) (Civile) (Autorisation) (32214) 2009?01?19
Jon Breslaw c. Ville de Montréal (Qc) (Civile) (Autorisation) (32369) 2009?01?19
A series of hearings at the SCC concerning the validity of municipal by-laws following the amalgamations of the cities of Longueuil and Montréal are scheduled for January 19, 2009.

Marcotte, Pouliot and Breslaw are municipal rate-payers who submit certain municipal by-laws are invalid because they are contrary to their enabling legislation and/or the Charter. The appellant-rate-payers wish to certify a class action against their respective cities to obtain tax reimbursements by declaring by-laws invalid. The lower courts refused to do so, finding that a class action proceeding was not “the appropriate recourse in the circumstances.”

Johanne Desbiens, Ingrid Ratté and Claudine Beaumont v. Wal?Mart Canada Corporation (Qc) (Civile) (Autorisation) (32527) 2009?01?21
Gaétan Plourde v. Wal?Mart Canada Corporation (Qc) (Civile) (Autorisation) (32342) 2009?01?21
Wal-Mart’s international battle against unions has reached the SCC. In these two hearings, the complainants are former employees of the Wal-Mart in Jonquière, Québec. After a union was certified for the store in September 2004, the Minister of Labour referred a dispute between Wal-Mart and the union’s collective agreement to arbitration on February 9, 2005. That day Wal-Mart decided to close the store and later terminated the employment of all 190 employees.

The complainants argue they lost their employment due to their involvement in a union, which is prohibited under s. 15 of the Labour Code. Wal-Mart claims the employees were terminated due to the permanent closure of the store a “good and sufficient reason.”

Also on deck for January
Anton Hooites-Meursing v. Her Majesty the Queen (B.C.) (Crim.) (By Leave) (32799) 2009-01-12
Salomonie Goo Jaw v. Her Majesty the Queen (NU) (Crim.) (As of Right / By Leave) (32706) 2009?01?13
Michel Strecko c. Sa Majesté la Reine (Qc) (Crim.) (De plein droit) (32679) 2009?01?14
Timothy Middleton v. Her Majesty the Queen (Ont.) (Crim.) (By Leave) (32138) 2009?01?20

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Full post as published by The Court on January 12, 2009 (boomark / email).