Canada Case Law

R. v. Chief Dsta’hyl

Court

British Columbia Court of Appeal

The proposed excusatory defence based on acting pursuant to Wet'suwet'en law fails because the accused's disobedience of the injunction was not a last-resort choice and, in substance, constituted an impermissible collateral attack on a valid court order for which lawful alternatives existed; accordingly the trial judge did not err in refusing to recognize the defence.

Source excerpt

• Contempt of court
• Collateral attack doctrine
• Necessity defence
• Recognition of indigenous legal orders
• Oral history evidence

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R. v. Brophy

Court

Supreme Court of Nova Scotia

Because no information was sworn before the appellant's first court appearance on May 31, 2021, the court lost jurisdiction over the person and the alleged offences and the undertaking ceased to have effect; accordingly the Crown failed to prove an essential element of breach of undertaking and the convictions on June 17, 2021 could not stand.

Source excerpt

• Breach of undertaking
• Harassing communications
• Charter s.7
• Jurisdiction to prosecute
• Ineffective assistance of counsel
• Collateral attack doctrine

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Garousi v. Garousi

Court

Supreme Court of British Columbia

The court dismissed a support-variation application as a collateral attack on an earlier order, finding no material change in circumstances and awarding costs.

• Variation of support orders
• Collateral attack doctrine
• Retroactive relief for child support
• Section 7 extraordinary expenses
• Enforcement and interjurisdictional orders
• Vexatious litigant doctrine

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Thecannie Koe First Nation v. Fort Nelson First Nation

Court

Supreme Court of British Columbia

The court dismissed an application to set aside or stay a prior possession order, finding it was an improper collateral attack and not a Rule 13-1(17) correction.

• Correction of orders (rule 13-1(17))
• Collateral attack doctrine
• Substituted service
• Vacant possession
• Consolidation and adjournment of proceedings
• Stay of execution

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Coastal Gaslink Pipeline Ltd. v. Huson

Court

Supreme Court of British Columbia

The court found Chief Dsta'hyl guilty of criminal contempt for breaching a Coastal GasLink injunction and rejected a defence based on Wet'suwet'en law.

• Criminal contempt
• Injunction
• Collateral attack doctrine
• S.8(3) criminal code
• Wet'suwet'en law of trespass
• Rule of law

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Yan v. Hutchinson

Court

Court of Appeal for Ontario

The appeals were dismissed because the statements of claim disclosed no reasonable cause of action: the claims were barred by statutory immunity under s.38 RHPA absent particularized bad faith, relevant materials and publications are protected by s.36(3) and absolute privilege, the pleadings improperly collaterally attacked the disciplinary decision, lawyers owed no duty to non-clients, and the defects were radical and incurable by amendment; the costs awards were not set aside.

Source excerpt

• Immunity under rhpa s.38
• Absolute privilege for tribunal proceedings
• Collateral attack doctrine
• Motions to strike r.21.01(1)(b)
• Duty of lawyers to non-clients
• Leave to amend pleadings

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Canada (Attorney General) v. Scow

Court

British Columbia Court of Appeal

The Court of Appeal held that Claim 2 was, in substance, a challenge to tax assessments and belonged in the Tax Court, so it struck the claim.

• Tax court jurisdiction
• Section 87 indian act
• Income tax act limitation periods
• Striking pleadings (rule 9-5)
• Restitution and equitable remedies
• Collateral attack doctrine

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Myers v. Canada (Attorney General)

Court

British Columbia Court of Appeal

The Court of Appeal held that provincial superior courts may determine the lawfulness of CRA assessments and related decisions when that issue is necessary to a civil tort claim.

• Misfeasance in public office
• Negligence
• Collateral attack doctrine
• Jurisdiction of tax court vs provincial superior courts
• Net-worth assessment method
• Judicial review

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Milne v. Canada

Court

Federal Court

The Federal Court dismissed claims for disturbance damages and injurious affection, finding no perceptible increase in noise after the railway expansion, but awarded $1,100 more for the taken lands.

• Disturbance damages
• Injurious affection
• Limitation period
• Expert evidence (noise and vibration)
• Valuation/appraisal
• Collateral attack doctrine

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Sabitu v. Canada (Citizenship and Immigration)

Court

Federal Court

Supplementary Federal Court reasons certifying three questions on exhaustion, collateral attack, and counsel incompetence in a refugee appeal judicial review.

• Collateral attack doctrine
• Reopening appeals (rule 49)
• Natural justice
• Counsel incompetence/prejudice threshold
• Certification of questions for appeal
• Immigration-law

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