The appellant, Cronauer, is appealing for the ability to erect three billboards close to a highway in Alberta. The Subdivision and Development Appeal Board (SDAB) allowed the erection of billboards, but subject to the condition that the appellant apply for a permit from Alberta Transportation. Alberta Transportation does not give such permits, and evidence was before the SDAB to this effect. The primary issue on appeal is whether 3.13(g) and 3.18(d) of the Land Use Bylaw, (the “Bylaw”) of the County of Grande Prairie No. 1 permitted the SDAB to impose the condition. Both subsections state that “A permit from Alberta Transportation may be required.”
The appellant argued that these statements were only informative, and did not give the SDAB the discretion to impose these conditions. However, the Court determined otherwise, based on Driedger’s interpretation of law: “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” The Court determined that based on the Municipal Government Act (“the MGA”), under which the Bylaw was enacted, and based on the purpose of the law as stated in s. 2 of the Bylaw, the two subsections indeed give the SDAB the authority to impose the condition of obtaining a permit from Alberta Transportation, even if such a permit doesn’t exist.
May 30, 2011
Link to Decision
Mike Kholodenko & Mary Phan
Monday, May 30, 2011
Maccaroni v. Kelly, 2011 ONCA 411
In this case the Ontario Court of Appeal considers whether the victim of a tort can bring an action against his/her own insurer under an OPCF 44R endorsement, when the limits of recovery from the tortfeasor’s insurer have not been legally determined yet.
The facts are as follows. Mary Maccaroni's insurance policy with ING had an OPCF 44R endorsement, which guarantees compensation for Maccaroni over and above third-party liability if Maccaroni’s actual injury exceeds the amount of compensation available from the third-party’s insurer. Maccaroni was rear-ended by a vehicle driven by Kevin Kelly (who did not have a valid driver’s licence) and owned by his mother Donna Ainsworth. The Ainsworth vehicle was insured by Co-operators. Maccaroni settled with Ainsworth/Co-operators for $200,000, on the assumption that the compensation from Co-operators would be limited because Kelly did not have a valid licence. Maccaroni then sought to recover from ING for compensation over and above the $200,000. ING moved for summary dismissal on the grounds that the $200,000 settlement was not a liability limit “reduced by operation of law”, a determination that ING argued would be necessary to activate the residual OPCF 44R claim. The motion judge granted summary judgment dismissing the action.
MacFarland J.A. allowed the appeal. MacFarland J.A. agreed with the motions judge that the $200,000 settlement was not a liability limit “reduced by operation of law”, even though Maccaroni and Ainsworth/Co-operators had assumed that $200,000 would be the maximum limit when they settled. MacFarland J.A. noted that third-party liability insurance is intended as first loss insurance and OPCF 44R as excess. However MacFarland J.A. differed from the motions judge by finding that the third-party liability limit could be determined at trial, despite the fact that neither the tortfeasor (Kelly) nor the insurer (Co-operators) were parties to the case at bar.
May 30, 2011
Link to Decision
Ryan MacIsaac
The facts are as follows. Mary Maccaroni's insurance policy with ING had an OPCF 44R endorsement, which guarantees compensation for Maccaroni over and above third-party liability if Maccaroni’s actual injury exceeds the amount of compensation available from the third-party’s insurer. Maccaroni was rear-ended by a vehicle driven by Kevin Kelly (who did not have a valid driver’s licence) and owned by his mother Donna Ainsworth. The Ainsworth vehicle was insured by Co-operators. Maccaroni settled with Ainsworth/Co-operators for $200,000, on the assumption that the compensation from Co-operators would be limited because Kelly did not have a valid licence. Maccaroni then sought to recover from ING for compensation over and above the $200,000. ING moved for summary dismissal on the grounds that the $200,000 settlement was not a liability limit “reduced by operation of law”, a determination that ING argued would be necessary to activate the residual OPCF 44R claim. The motion judge granted summary judgment dismissing the action.
MacFarland J.A. allowed the appeal. MacFarland J.A. agreed with the motions judge that the $200,000 settlement was not a liability limit “reduced by operation of law”, even though Maccaroni and Ainsworth/Co-operators had assumed that $200,000 would be the maximum limit when they settled. MacFarland J.A. noted that third-party liability insurance is intended as first loss insurance and OPCF 44R as excess. However MacFarland J.A. differed from the motions judge by finding that the third-party liability limit could be determined at trial, despite the fact that neither the tortfeasor (Kelly) nor the insurer (Co-operators) were parties to the case at bar.
May 30, 2011
Link to Decision
Ryan MacIsaac
Wednesday, May 25, 2011
Saskatchewan Government Insurance v. Williams, 2011 SKCA 66
In this case, the Saskatchewan Court of Appeal considered whether a Provincial Court has jurisdiction to summarily determine a point of law that does not dismiss the action entirely, holding that it does not have such jurisdiction.
The issue arose when the appellant brought an action in small claims court against Saskatchewan Government Insurance (SGI) due to their dispute over an automobile accident. SGI argued that the accident was the result of a mechanical failure or breakdown, and, in the alternative, that the claim was brought outside the two-year limitation period in Saskatchewan's Limitations Act. After a preliminary hearing, the Provincial Court judge ruled that the claim was statute barred. The Court of Queen’s Bench reversed that decision and remitted the case back to Provincial Court for a full determination of the remaining issues.
Herauf J.A. allowed the appeal and sent the case back to Provincial Court for a full determination on all the issues, including whether the claim was statute barred. Herauf J.A. held that even if the limitation period issue was decided, liability and damages were still live issues because the action could be decided on the liability issue alone without resorting to the time limitation defence. Provincial Courts only have jurisdiction to decide points of law that dismiss the whole action, and this cannot be the scenario where there are still live issues. Therefore, the Provincial Court did not have jurisdiction to decide the limitation period issue without hearing the liability and damages issues first.
May 25, 2011
Link to Decision
Ryan MacIsaac
The issue arose when the appellant brought an action in small claims court against Saskatchewan Government Insurance (SGI) due to their dispute over an automobile accident. SGI argued that the accident was the result of a mechanical failure or breakdown, and, in the alternative, that the claim was brought outside the two-year limitation period in Saskatchewan's Limitations Act. After a preliminary hearing, the Provincial Court judge ruled that the claim was statute barred. The Court of Queen’s Bench reversed that decision and remitted the case back to Provincial Court for a full determination of the remaining issues.
Herauf J.A. allowed the appeal and sent the case back to Provincial Court for a full determination on all the issues, including whether the claim was statute barred. Herauf J.A. held that even if the limitation period issue was decided, liability and damages were still live issues because the action could be decided on the liability issue alone without resorting to the time limitation defence. Provincial Courts only have jurisdiction to decide points of law that dismiss the whole action, and this cannot be the scenario where there are still live issues. Therefore, the Provincial Court did not have jurisdiction to decide the limitation period issue without hearing the liability and damages issues first.
May 25, 2011
Link to Decision
Ryan MacIsaac
United States Steel Corporation v. Canada (Attorney General), 2011 FCA 176
The Federal Court of Appeal held that s. 39 and 40 of the Investment Canada Act violate neither s. 11(d) of the Charter, nor s. 2(e) of the Canadian Bill of Rights. Accordingly, where foreign investors fail to comply with undertakings made as part of their applications to obtain control of major corporations, it is constitutionally valid for the Minister to seek to impose monetary penalties under the Act.
In reaching this result, the Court applied the two-part test, as established in R. v. Wigglesworth, to determine whether s.11 of the Charter applied. Under the Wigglesworth test, the proceeding must either be criminal in nature, or lead to the imposition of a "true penal consequence". Under the first part of the test, the Court applied the three factors set out in Martineau v. M.N.R. to determine whether the proceeding was criminal in nature. In applying the criteria set out in Martineau, the Court concluded that the objective of s. 40 sanctions is to "encourage and promote timely compliance with any undertakings and provisions of the legislation." Further, Justice Nadon found that a court's powers in a s. 40 hearing are directed at preventing harm to the Canadian economy, and not toward retributive aims. The Court went on to clarify that the mere availability of contempt proceedings to punish non-compliance, notwithstanding the possibility of imprisonment, does not turn the s. 40 monetary penalties into fines. This is because U.S. Steel faces the possibility of contempt proceedings only if it is able, but unwilling, to pay the penalty imposed under the Act. Accordingly, the court found that the relevant provisions of the Act did not fall under the first Wigglesworth category. With respect to the question of whether the sanctions constitute a "true penal consequence", the Court noted that the magnitude of the penalties is not determinative, and that large penalties are required to deter large corporations from absorbing the penalties as simply "another cost of doing business". Accordingly, the relevant provisions did not fall under either of the Wigglesworth categories and therefore did not attract s. 11 protection.
Finally, the Court dismissed U.S. Steel's submission that the lack of a criteria for setting fines inevitably makes the monetary penalty punitive, holding that even an unlimited statutory power to fine will not be subject to s. 11 scrutiny as long as it is exercised to achieve "proper administrative aims".
With regard to U.S. Steel's Bill of Rights challenge, Justice Nadon held that section 40 of the Canada Investment Act does not violate the right to a fair hearing in accordance with the rules of fundamental justice, and that the Federal Court Rules are sufficient to satisfy the requirements of s. 2(e). In particular, s. 40 does not infringe upon a party's right to know the case he or she has to meet, and the Rules provide the appropriate procedural protections to ensure that the investor understands the Minister's case.
May 25, 2011
Link to Decision
Steve Holinski & Edward Changsik Kang
In reaching this result, the Court applied the two-part test, as established in R. v. Wigglesworth, to determine whether s.11 of the Charter applied. Under the Wigglesworth test, the proceeding must either be criminal in nature, or lead to the imposition of a "true penal consequence". Under the first part of the test, the Court applied the three factors set out in Martineau v. M.N.R. to determine whether the proceeding was criminal in nature. In applying the criteria set out in Martineau, the Court concluded that the objective of s. 40 sanctions is to "encourage and promote timely compliance with any undertakings and provisions of the legislation." Further, Justice Nadon found that a court's powers in a s. 40 hearing are directed at preventing harm to the Canadian economy, and not toward retributive aims. The Court went on to clarify that the mere availability of contempt proceedings to punish non-compliance, notwithstanding the possibility of imprisonment, does not turn the s. 40 monetary penalties into fines. This is because U.S. Steel faces the possibility of contempt proceedings only if it is able, but unwilling, to pay the penalty imposed under the Act. Accordingly, the court found that the relevant provisions of the Act did not fall under the first Wigglesworth category. With respect to the question of whether the sanctions constitute a "true penal consequence", the Court noted that the magnitude of the penalties is not determinative, and that large penalties are required to deter large corporations from absorbing the penalties as simply "another cost of doing business". Accordingly, the relevant provisions did not fall under either of the Wigglesworth categories and therefore did not attract s. 11 protection.
Finally, the Court dismissed U.S. Steel's submission that the lack of a criteria for setting fines inevitably makes the monetary penalty punitive, holding that even an unlimited statutory power to fine will not be subject to s. 11 scrutiny as long as it is exercised to achieve "proper administrative aims".
With regard to U.S. Steel's Bill of Rights challenge, Justice Nadon held that section 40 of the Canada Investment Act does not violate the right to a fair hearing in accordance with the rules of fundamental justice, and that the Federal Court Rules are sufficient to satisfy the requirements of s. 2(e). In particular, s. 40 does not infringe upon a party's right to know the case he or she has to meet, and the Rules provide the appropriate procedural protections to ensure that the investor understands the Minister's case.
May 25, 2011
Link to Decision
Steve Holinski & Edward Changsik Kang
West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247
In West Moberly First Nations v. British Columbia (Chief Inspector of Mines), the British Columbia Court of Appeal considered the scope of the Crown’s duty to consult and accommodate First Nations treaty rights. The Court found that Crown delegates have the duty to take First Nations rights into consideration even if it is not included in their statutory mandate. It affirmed that historical context and potential future developments are relevant to the duty to consider treaty hunting rights. The majority held that these can include species- or herd-specific rights. The Court also suggested that orders directing specific accommodation must be avoided whenever possible in favour of orders directing further consultation.
The case arose when the West Moberly First Nations (WMFN) disputed an order by the BC Ministry of Energy, Mines and Petroleum Resources (MEMPR) granting sampling and exploration permits to a coal company in the WMFN traditional hunting ground. They argued that the order violated the First Nations’ Treaty hunting rights. Chief Justice Finch, writing for the majority, affirmed the Supreme Court of British Columbia’s issuance of a stay for lack of consultation and accommodation but set aside the lower court’s accommodation order directing the B.C. government to protect a specific caribou herd. He confirmed that judicial review was a correct forum to determine the scope of an aboriginal treaty right. He held that MEMPR was not limited by its statutory mandate so far as its duty to consult was concerned. He found that the MEMPR was bound to take cognizance of the Treaty and “its true interpretation” even though its mandate did not include the authority to consider or accommodate First Nations issues. The Chief Justice reasoned that the Treaty was part of the legal and constitutional limits that the MEMPR was inherently bound to respect. He also held that the chambers judge did not err in considering the specific location and species of the First Nations’ hunting practices.
In his opinion, the Chief Justice found that the duty to consult may include consideration of “historical context” if it is “essential to a proper understanding of the seriousness of the potential impacts” on Aboriginal treaty rights. He held that consideration of such matters is acceptable if it is not an attempt to redress past wrongs, but rather recognition of an existing state of affairs. Chief Justice Finch found that consideration of hypothetical long-term developments that flow from the decision under consideration may fall within the scope of the duty to consult as well. He distinguished Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council because the decision under consideration in this case will have an adverse impact on a First Nation right, but the decision in Rio Tinto would not have. However, the Chief Justice set aside the specific accommodation order made by the chambers judge, despite finding that the remedial powers in the Judicial Review Procedure Act granted him sufficiently broad discretion to make the order. Chief Justice Finch held that in past cases, courts have shown a reluctance to make specific accommodation orders so as not to impair further consultation.
Hinkson and Garson J.J.A. agreed to set aside the specific accommodation order, but disagreed on the scope of the duty to consult. Justice Hinkson cited Rio Tinto in his concurrence for the proposition that the duty to accommodate does not oblige the Crown to consider any prior harms not causally related to the decision under consideration. He did, however, acknowledge that historical context is relevant in considering existing conditions. In her dissent, Garson, J.A., agreed with Justice Hinkson about the duty to consult, but also took issue with the characterization of the treaty right. Pointing to precedent and the language of the Treaty, she reasoned that the protected right was one of hunting in general, not a species- or herd-specific right to hunt caribou. Since other ungulates were still available for hunting by the West Moberly, Garson, J.A. reasoned that the impact of the permit approvals was less significant and therefore that reasonable accommodation had occurred.
May 25, 2011.
http://www.courts.gov.bc.ca/jdb-txt/CA/11/02/2011BCCA0247.htm
Diego Beltran, Marc Gibson & Kai Sheffield
Tuesday, May 24, 2011
Jaballah v. Canada (Citizenship and Immigration) (2011 FCA 175)
In Jaballah v. Canada (Citizenship and Immigration), the Federal Court of Appeal: (1) interpreted s. 82.1(2) of the Immigration and Refugee Protection Act (“IRPA”) as it relates to waiting periods between subsequent security certificate conditions variations appeals; and, (2) interpreted s. 82.1(1) of the IRPA and the test for whether to grant a security certificate variation order. Noel J.A. held that the six-month waiting period under s. 82.1(2) begins at the more recent of either the most recent review or the most recent variation order, and that other circumstances cannot be considered under s. 82.1(1) without first addressing the risk attached to the requested variation.
Jaballah was subject to a security certificate the conditions of which he applied to have varied. IRPA s. 82(4) allows a person to apply to have their security certificate conditions varied if six months have elapsed since the conclusion of the preceding review (this is not the same remedy as a variation order). IRPA s. 82.1(2) deems that the conclusion of the preceding review takes place on the day that a variation order is made. It had been six months since the last variation order for Jaballah’s security certificate, but less than six months since the last review. Jaballah argued that the deeming provision meant that he was outside of the waiting period, since it had been more than six months since the last variation order. Noël J.A. disagreed, holding s. 82.1(2) to read harmoniously with the scheme of the Act, and concluded that absurd results would emerge if Jaballah’s narrow interpretation was accepted.
IRPA s. 82.1(1) permits a judge to vary conditions that were ordered attached to a security certificate if “the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”. The Federal Court judge restricted her analysis to the threat or risk that Jaballah posed to national security. Jaballah argued that the judge should have considered other circumstances, specifically his difficulties in finding a supervisor during specified activities. Noël J.A. agreed with the lower court, finding that Jaballah could not ask for a variation without first addressing his security risk.
May 24, 2011
Link to Decision
Steve Holinski & Ryan MacIsaac
*
Jaballah was subject to a security certificate the conditions of which he applied to have varied. IRPA s. 82(4) allows a person to apply to have their security certificate conditions varied if six months have elapsed since the conclusion of the preceding review (this is not the same remedy as a variation order). IRPA s. 82.1(2) deems that the conclusion of the preceding review takes place on the day that a variation order is made. It had been six months since the last variation order for Jaballah’s security certificate, but less than six months since the last review. Jaballah argued that the deeming provision meant that he was outside of the waiting period, since it had been more than six months since the last variation order. Noël J.A. disagreed, holding s. 82.1(2) to read harmoniously with the scheme of the Act, and concluded that absurd results would emerge if Jaballah’s narrow interpretation was accepted.
IRPA s. 82.1(1) permits a judge to vary conditions that were ordered attached to a security certificate if “the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”. The Federal Court judge restricted her analysis to the threat or risk that Jaballah posed to national security. Jaballah argued that the judge should have considered other circumstances, specifically his difficulties in finding a supervisor during specified activities. Noël J.A. agreed with the lower court, finding that Jaballah could not ask for a variation without first addressing his security risk.
May 24, 2011
Link to Decision
Steve Holinski & Ryan MacIsaac
*
Friday, May 20, 2011
B&M Handelman Investments Ltd. v. Curreri, 2011 ONCA 395
In B&M Handelman Investments Ltd. v. Curreri, the Court of Appeal for Ontario held that a party that had already had a default judgment entered against it, and that had already paid funds into court under a Mareva injunction that were to be paid out to satisfy the judgment, could not access those funds for the purpose of legal and living expenses.
The appellant was a creditor of the respondents who impersonated a relative in order to secure a mortgage. The appellant also faced related criminal charges of fraud. After the initial default, the creditors obtained a Mareva injunction against the defendant's funds to be paid into court, for which a partial default judgement was entered. The court declined to apply the test for granting access to funds held under a Mareva injunction for legal and living expenses as set out in Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, noting that this test is premised on the
matter not having been finally adjudicated. Reasoning that, once default judgment is ordered, and no merits are disclosed for an appeal, there is no principled basis to allow depletion of assets that are in court "to the credit of the action”, the Court refused to release the funds.
May 20, 2011
Link to Decision
Grant Bishop, Steve Holinski & Kai Sheffield
*
The appellant was a creditor of the respondents who impersonated a relative in order to secure a mortgage. The appellant also faced related criminal charges of fraud. After the initial default, the creditors obtained a Mareva injunction against the defendant's funds to be paid into court, for which a partial default judgement was entered. The court declined to apply the test for granting access to funds held under a Mareva injunction for legal and living expenses as set out in Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, noting that this test is premised on the
matter not having been finally adjudicated. Reasoning that, once default judgment is ordered, and no merits are disclosed for an appeal, there is no principled basis to allow depletion of assets that are in court "to the credit of the action”, the Court refused to release the funds.
May 20, 2011
Link to Decision
Grant Bishop, Steve Holinski & Kai Sheffield
*
Thursday, May 19, 2011
Lévesque and BMG Farming Ltd. v. Province of New Brunswick and New Brunswick Crop Insurance Commission, 2011 NBCA 48 (CanLII)
In this case, the New Brunswick Court of Appeal determined that section 4(1) of the New Brunswick Proceedings Against the Crown Act operates to prevent the Crown and Crown corporations from being sued for negligent misrepresentation.
In 1994, the Lévesques’ potato crops were affected by a fungal disease. The risk of fungal disease was covered under their policies with the New Brunswick Crop Insurance Commission. The Lévesques alleged that representatives of the Commission and the province of New Brunswick recommended that they take “extraordinary” remedial steps to save the crops, and represented that the Minister of Agriculture would reimburse all outlays. Their applications for redress through the arbitration process provided by the now repealed Crop Insurance Act were unsuccessful. In 1996, the Lévesques commenced actions for negligent misrepresentation against the Province and the Commission representative who misrepresented the Minister’s reimbursement commitment. In 2006, the action against the Commission representative was discontinued, and the claims amended to include claims for breach of contract and restitution. At the close of the trial in 2009, the Province moved for non-suit, claiming that Crown immunity and prescription foreclosed judgment against them.
The Court of Appeal found that the trial judge was correct in finding that the Proceedings Against the Crown Act precluded an action for negligent misrepresentation against the Province and the Commission, a Crown corporation within the comprehension of that Act. In New Brunswick, the Crown is only liable for torts falling within the categories listed in section 4(1). The Lévesques claimed that section 4(3) of the Proceedings Against the Crown Act indicated a “legislative intention to put in place a scheme that leaves the Crown in no better position than an ordinary citizen when it comes to answering in damages for any tort”. The Court, however, determined that section 4(3) does not “open the door to a lawsuit for negligent misrepresentation against the Crown”. After reviewing the Uniform Model Act and similar statutes in other provinces, the Court determined that section 4(3) must be read in a way that is harmonious with the entire Proceedings Against the Crown Act. Therefore, as section 4(1) limits Crown liability in tort to specific categories, section 4(3) should not be read to expand Crown liability beyond the categories specified in section 4(1).
May 19, 2011
Link to Decision
Catherine Marchant
*
In 1994, the Lévesques’ potato crops were affected by a fungal disease. The risk of fungal disease was covered under their policies with the New Brunswick Crop Insurance Commission. The Lévesques alleged that representatives of the Commission and the province of New Brunswick recommended that they take “extraordinary” remedial steps to save the crops, and represented that the Minister of Agriculture would reimburse all outlays. Their applications for redress through the arbitration process provided by the now repealed Crop Insurance Act were unsuccessful. In 1996, the Lévesques commenced actions for negligent misrepresentation against the Province and the Commission representative who misrepresented the Minister’s reimbursement commitment. In 2006, the action against the Commission representative was discontinued, and the claims amended to include claims for breach of contract and restitution. At the close of the trial in 2009, the Province moved for non-suit, claiming that Crown immunity and prescription foreclosed judgment against them.
The Court of Appeal found that the trial judge was correct in finding that the Proceedings Against the Crown Act precluded an action for negligent misrepresentation against the Province and the Commission, a Crown corporation within the comprehension of that Act. In New Brunswick, the Crown is only liable for torts falling within the categories listed in section 4(1). The Lévesques claimed that section 4(3) of the Proceedings Against the Crown Act indicated a “legislative intention to put in place a scheme that leaves the Crown in no better position than an ordinary citizen when it comes to answering in damages for any tort”. The Court, however, determined that section 4(3) does not “open the door to a lawsuit for negligent misrepresentation against the Crown”. After reviewing the Uniform Model Act and similar statutes in other provinces, the Court determined that section 4(3) must be read in a way that is harmonious with the entire Proceedings Against the Crown Act. Therefore, as section 4(1) limits Crown liability in tort to specific categories, section 4(3) should not be read to expand Crown liability beyond the categories specified in section 4(1).
May 19, 2011
Link to Decision
Catherine Marchant
*
Friday, May 13, 2011
R. v. Roncaioli, 2011 ONCA 378
In R. v. Roncaioli, the Ontario Court of Appeal clarified the approach the sentencing judge should take in determining the appropriate sentence where the basis of the jury's verdict is ambiguous. Laskin J.A., writing for the court, held that sentencing judge must sentence according to his or her independent determination of the facts, consistent with the jury's verdict.
The appellant was a retired medical doctor who was convicted of manslaughter in the death of his wife and sentenced to seven years' imprisonment. At trial, it was unclear whether the jury had found him guilty based on criminal negligence or an unlawful act, but the trial judge sentenced the appellant on the basis of her own finding that an aggravated assault had taken place.
The appellant referred to previous Ontario Court of Appeal decisions R v. Cooney and R. v. Craig to argue that the sentencing judge is "obligated to give to the convicted accused the benefit of the doubt regarding the basis on which he was convicted by the jury". Because the basis of the jury's verdict was unclear, he argued that he should therefore have been sentenced based on the less morally blameworthy charge of manslaughter by criminal negligence. Laskin J.A. found the previous jurisprudence inconsistent with Supreme Court of Canada decisions R. v. Brown, R. v. Tempelaar and R. v. Ferguson. He affirmed the trial judge's factual findings and grounds for the sentence imposed, including the necessity of denouncing the abuse of a doctor's special skills "to cause deadly harm." After dismissing the conviction appeal, Justice Laskin dismissed the sentence appeal as well.May 13, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0378.htm
Webnesh Haile & Minsuk Kim
Thursday, May 12, 2011
Doucet and Dauphinee v. Spielo Manufacturing Incorporated and Manship, 2011 NBCA 44
In Doucet and Dauphinee v. Spielo Manufacturing Incorporated and Manship, the New Brunswick Court of Appeal provided an overview of jurisprudence and principles related to the award of costs according to the New Brunswick Tariff "A", under Rule 59 of the Rules of Court. Robertson J.A., writing for the Court, held that, although the purpose of awarding party-and-party costs in New Brunswick is not to provide substantial indemnification, but to foster access to justice, actions of one party that cause proceedings to be "unnecessarily complex" may justify awarding costs based on a higher scale of compensation.
The case under appeal involves a complex series of arguments on the part of the appellants, who claimed wrongful termination resulting from oppressive conduct designed to deprive appellant of the full value of shares held in Spielio Inc.. After termination of employment with notice and severance pay, the appellants' shares were surrendered for compensation at net book value, as per the employment contract. One year later, the shares were worth significantly more as a result of a sale of the company. Robertson J.A. affirmed the trial judge's factual findings that there was little or no evidence to support the appellant's "conspiracy theory" that an impending sale motivated termination of employment in order to force appellants to return shares at a lower value that that to be received at sale.
Justice Robertson found that the appellant's repeated "fishing expeditions" during discovery caused the case to be "unnecessarily complex", which justified the trial judge's award based on the highest Tariff scale available. He agreed with the trial judge in NB Power v. Westinghouse, released a few weeks after the lower court's decision in this case, that the purpose of awarding party-and-party costs is not to provide substantial indemnification, but dismissed the appellant's request for a lowered costs award. Robertson J.A. found that an award that provides substantial indemnity is still possible through the proper exercise of judicial discretion and the application of the Tariff. He concluded that "Rule 59.01 has been drafted in the broadest of terms to preserve the discretion of trial judges when it comes to the task of fixing costs, so long as that discretion is exercised in a principled manner." He overruled Westinghouse for failing to follow Tariff guidelines and providing a lump sum award without sufficient reasons. He reduced the award from $838,490.62 to $745,325, removing costs awarded against the appellant for refusing a settlement offer that was substantially low in comparison to the claims that warranted consideration. This is the largest cost award to have issued out of the Court of Queen's Bench of New Brunswick to date.
May 12, 2011
http://www.gnb.ca/cour/03COA1/Decisions/2011/May/20110512Spielo2011NBCA%2044.pdf
Webnesh Haile & Minsuk Kim
May 12, 2011
http://www.gnb.ca/cour/03COA1/Decisions/2011/May/20110512Spielo2011NBCA%2044.pdf
Webnesh Haile & Minsuk Kim
Tuesday, May 10, 2011
Icahn Partners LP v. Lions Gate Entertainment Corp., 2011 BCCA 228
The British Columbia Court of Appeal considered the corporate law oppression remedy in light of the Supreme Court of Canada’s decision in BCE Inc. v. 1976 Debentureholders. The Court held that a deleveraging transaction, which had the effect of diluting a minority shareholder’s (the “Shareholder”) interest in the corporation at a time where the Shareholder was making a bid for control of the company, was not oppressive conduct. The Shareholder had threatened to engage in a proxy contest to remove the directors at the next shareholders’ meeting. The stated purpose of the deleveraging transaction was the reduction of the corporation’s debt load. The Shareholder alleged that the transaction had the effect of entrenching the board and accordingly constituted oppressive conduct. The appeal focused on whether the Shareholder held reasonable expectations that had been violated with an unfair effect. Justice Newbury dismissed the appeal, holding that the Shareholder could not have reasonably expected the directors not to approve the dilutive transaction so that the status quo would be preserved for the Shareholder’s benefit. The directors were also found to have acted in the corporation’s best interest.
The appellant argued that the dilution of its interest by the deleveraging transaction made it more difficult to succeed in its stated intention of unseating the board. The court applied the two- step analysis for the oppression remedy from BCE. This required the court to examine: first, whether the evidence supports the holding of a reasonable expectation by the claimant; and, second, whether that expectation was violated by conduct that was oppressive, was unfairly prejudicial or unfairly disregarded a relevant interest. The court held that where the interests of the shareholders and corporation do not coincide, the directors owe their duty to the corporation, and the reasonable expectation of the shareholders is that the directors will act in the best interests of the corporation. Since the trial judge found that the directors acted in the corporation's best interests in reducing the corporation's debt, even though it had the consequent effect of diluting the Shareholder's stake, the court held that the appellant could not complain of a violation of its reasonable expectations as a shareholder. The court expressed doubt, but assumed without deciding, that the Shareholder truly held its stated expectations.
May 10, 2011
Link to Decision
Grant Bishop & Steve Holinski
*
The appellant argued that the dilution of its interest by the deleveraging transaction made it more difficult to succeed in its stated intention of unseating the board. The court applied the two- step analysis for the oppression remedy from BCE. This required the court to examine: first, whether the evidence supports the holding of a reasonable expectation by the claimant; and, second, whether that expectation was violated by conduct that was oppressive, was unfairly prejudicial or unfairly disregarded a relevant interest. The court held that where the interests of the shareholders and corporation do not coincide, the directors owe their duty to the corporation, and the reasonable expectation of the shareholders is that the directors will act in the best interests of the corporation. Since the trial judge found that the directors acted in the corporation's best interests in reducing the corporation's debt, even though it had the consequent effect of diluting the Shareholder's stake, the court held that the appellant could not complain of a violation of its reasonable expectations as a shareholder. The court expressed doubt, but assumed without deciding, that the Shareholder truly held its stated expectations.
May 10, 2011
Link to Decision
Grant Bishop & Steve Holinski
*
Ontario (Attorney General) v. 8477 Darlington Crescent 2011 ONCA 363
The Ontario Court of Appeal clarified the built in exception portion of s. 3(1) of the Civil Remedies Act, 2001 (the “Act”), which gives the court discretion to refuse to grant a s. 3(1) forfeiture application that has otherwise been established, where to grant the application would “clearly not be in the interests of justice.”
In order to establish a forfeiture application brought under s.3(1) of the Act, the Attorney General must show that the property constitutes the “proceeds of unlawful activity.” The court held that the source of the funds used to pay the mortgages on the properties is a relevant factor in this determination. Accordingly, an applicant is required to respond to questions regarding the income sources used to make both down payments and mortgage payments. If an applicant refuses to answer, it is within the discretion of the trial judge to draw an adverse inference.
The “interests of justice” exception operates where the Crown has otherwise established a valid forfeiture application and where the owner is unable to bring themselves under the Act’s s.3(2) “legitimate owner” exception. The court held that to fall under the “clearly not in the interests of justice” exception it must be demonstrated that forfeiture would otherwise be “manifestly harsh” and result in an “inequitable result.” Justice Doherty went on to hold that while s. 3(1) forfeiture orders are meant to further the purposes of the Act, as set out in s.1, this does not mean that the “interests of justice” can be directly equated to these purposes. The “interests of justice” are broader and include maintaining public confidence in the justice system; this confidence requires promoting the community's sense of fairness in forfeiture orders. Accordingly, the court is required to take into consideration all relevant factors. Justice Doherty held that these factors would vary with each case, but that there were three relevant factors for the case at bar. First, the reasonableness of the conduct of the party whose property is subject to the forfeiture application as that conduct related to the unlawful activity. Second, it was relevant to consider the value of that party’s interest in the property, as compared to the value of the property tainted by the unlawful activity. This factor is particularly important where the property owner is not implicated in, or is unaware of, the criminal activity. Finally, the third relevant factor is the interplay between the purposes of the Act and discretionary relief from forfeiture. Where the owner has no knowledge of the criminal activity the deterrence purpose of the Act is not furthered, and may in fact be undermined, by a forfeiture order.
Finally, Justice Doherty went on to hold that there is no unfairness in the bringing of a forfeiture application under the Act even if it is brought immediately after withdrawal of criminal charges against the property owner.
May 10, 2011
Link to Decision
Steve Holinski
*
In order to establish a forfeiture application brought under s.3(1) of the Act, the Attorney General must show that the property constitutes the “proceeds of unlawful activity.” The court held that the source of the funds used to pay the mortgages on the properties is a relevant factor in this determination. Accordingly, an applicant is required to respond to questions regarding the income sources used to make both down payments and mortgage payments. If an applicant refuses to answer, it is within the discretion of the trial judge to draw an adverse inference.
The “interests of justice” exception operates where the Crown has otherwise established a valid forfeiture application and where the owner is unable to bring themselves under the Act’s s.3(2) “legitimate owner” exception. The court held that to fall under the “clearly not in the interests of justice” exception it must be demonstrated that forfeiture would otherwise be “manifestly harsh” and result in an “inequitable result.” Justice Doherty went on to hold that while s. 3(1) forfeiture orders are meant to further the purposes of the Act, as set out in s.1, this does not mean that the “interests of justice” can be directly equated to these purposes. The “interests of justice” are broader and include maintaining public confidence in the justice system; this confidence requires promoting the community's sense of fairness in forfeiture orders. Accordingly, the court is required to take into consideration all relevant factors. Justice Doherty held that these factors would vary with each case, but that there were three relevant factors for the case at bar. First, the reasonableness of the conduct of the party whose property is subject to the forfeiture application as that conduct related to the unlawful activity. Second, it was relevant to consider the value of that party’s interest in the property, as compared to the value of the property tainted by the unlawful activity. This factor is particularly important where the property owner is not implicated in, or is unaware of, the criminal activity. Finally, the third relevant factor is the interplay between the purposes of the Act and discretionary relief from forfeiture. Where the owner has no knowledge of the criminal activity the deterrence purpose of the Act is not furthered, and may in fact be undermined, by a forfeiture order.
Finally, Justice Doherty went on to hold that there is no unfairness in the bringing of a forfeiture application under the Act even if it is brought immediately after withdrawal of criminal charges against the property owner.
May 10, 2011
Link to Decision
Steve Holinski
*
Friday, May 6, 2011
United States of America v. Khadr, 2011 ONCA 358
In United States of America v. Khadr, the Ontario Court of Appeal considered the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges. Justice Sharpe, writing for the court, affirmed that an extradition judge has residual discretion to stay extradition proceedings under common law if the requesting state’s conduct undermined the integrity of the judicial process. He held that this determination requires only a nexus between the state’s misconduct and the committal hearing, not a direct relationship.
In 2004 the United States paid the Pakistani intelligence agency (the ISI) half a million dollars to abduct Khadr, a Canadian citizen, in Islamabad. After 14 months, he was repatriated to Canada and the U.S. sought to have him extradited on terrorism charges. Superior Court Justice Christopher M. Speyer found that the U.S. collaborated in his extended detention, during which Khadr suffered human rights violations that were “both shocking and unjustifiable”. The extradition judge found that the U.S. should have known these violations were likely to occur and stayed the proceedings for abuse of process.
The core issue on appeal was whether granting the stay exceeded the extradition judge’s jurisdiction and usurped the function of the Minister of Justice. Justice Sharpe rejected the argument that s. 44(1)(a) of the Extradition Act deprives a court of its power to protect its own integrity by staying proceedings on the ground of abuse of process. He noted four phases to the extradition process: ministerial authority to proceed, judicial determination that the alleged conduct would warrant committal if it occurred in Canada, ministerial order of surrender, and a final judicial supervisory stage. The court in United States of America v. Cobb and United States of America v. Kwok held that ss. 6 & 12 Charter issues fall within the jurisdiction of the Minister at the third phase. The court in Cobb held further that issues which by their very nature pertain to the committal stage “including the court’s common law power to stay proceedings on grounds of abuse of process in order to protect the court’s integrity” fall within the jurisdiction of the extradition judge, not the Minister. Sharpe J.A. rejected the narrow interpretation that Cobb requires that the conduct of the requesting state have a direct bearing on the committal hearing. Finding that there was a nexus between U.S. conduct and the committal hearing, he dismissed the appeal.
May 6, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0358.htm
Tony Drake & Minsuk Kim
In 2004 the United States paid the Pakistani intelligence agency (the ISI) half a million dollars to abduct Khadr, a Canadian citizen, in Islamabad. After 14 months, he was repatriated to Canada and the U.S. sought to have him extradited on terrorism charges. Superior Court Justice Christopher M. Speyer found that the U.S. collaborated in his extended detention, during which Khadr suffered human rights violations that were “both shocking and unjustifiable”. The extradition judge found that the U.S. should have known these violations were likely to occur and stayed the proceedings for abuse of process.
The core issue on appeal was whether granting the stay exceeded the extradition judge’s jurisdiction and usurped the function of the Minister of Justice. Justice Sharpe rejected the argument that s. 44(1)(a) of the Extradition Act deprives a court of its power to protect its own integrity by staying proceedings on the ground of abuse of process. He noted four phases to the extradition process: ministerial authority to proceed, judicial determination that the alleged conduct would warrant committal if it occurred in Canada, ministerial order of surrender, and a final judicial supervisory stage. The court in United States of America v. Cobb and United States of America v. Kwok held that ss. 6 & 12 Charter issues fall within the jurisdiction of the Minister at the third phase. The court in Cobb held further that issues which by their very nature pertain to the committal stage “including the court’s common law power to stay proceedings on grounds of abuse of process in order to protect the court’s integrity” fall within the jurisdiction of the extradition judge, not the Minister. Sharpe J.A. rejected the narrow interpretation that Cobb requires that the conduct of the requesting state have a direct bearing on the committal hearing. Finding that there was a nexus between U.S. conduct and the committal hearing, he dismissed the appeal.
May 6, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0358.htm
Tony Drake & Minsuk Kim
Thursday, May 5, 2011
BBM Canada v. Research in Motion Limited, 2011 FCA 151
The Federal Court of Appeal decided the procedural issue of whether a claim for trade-mark infringement, depreciation of goodwill and passing-off, made pursuant to s.53.2 of the Trade-marks Act, could be brought by a notice of application under Part 5 of the Federal Courts Rules, or whether it had to be brought by way of action under Part 4 of the Rules. Dawson J.A. held that it was possible to bring a s.53.2 action either by way of notice of application or by way of an action. However, it was stated that not every case will be amenable to determination by way of notice of application.
Justice Dawson first considered the Federal Court Rules, concluding that the determination of the applicable Rule depends on the specific legislation under which the claim is brought. The relevant provision of the Trade-marks Act allows for relief “on application” by a party to the Federal Court. Dawson J.A. held that the words “on application” could not be read to require a notice of application to the exclusion of an action, because other provisions of the Act that include the phrase “on application” require an action to be brought. In the context of this section of the Act, “on application” means a formal legal request without specifying the procedure. Thus, the Act is silent as to the applicable procedure. The determining relevant provision is located in the “Legal Proceedings” section of the Act. The legislative purpose of the “Legal Proceedings” section is to provide legal redress. In the view of Dawson J.A., this means facilitating “access to the courts that is as expeditious and proportionate as possible”, whether by application or by action. Madam Justice Dawson notes that some issues will be sufficiently complex to require an action. In each individual case, “circumstances such as the relief sought, the extent credibility is in issue or the need for discovery may make it inappropriate for a proceeding to be commenced by application.”
May 5, 2011
Link to Decision
Steve Holinski & Ryan MacIsaac
Justice Dawson first considered the Federal Court Rules, concluding that the determination of the applicable Rule depends on the specific legislation under which the claim is brought. The relevant provision of the Trade-marks Act allows for relief “on application” by a party to the Federal Court. Dawson J.A. held that the words “on application” could not be read to require a notice of application to the exclusion of an action, because other provisions of the Act that include the phrase “on application” require an action to be brought. In the context of this section of the Act, “on application” means a formal legal request without specifying the procedure. Thus, the Act is silent as to the applicable procedure. The determining relevant provision is located in the “Legal Proceedings” section of the Act. The legislative purpose of the “Legal Proceedings” section is to provide legal redress. In the view of Dawson J.A., this means facilitating “access to the courts that is as expeditious and proportionate as possible”, whether by application or by action. Madam Justice Dawson notes that some issues will be sufficiently complex to require an action. In each individual case, “circumstances such as the relief sought, the extent credibility is in issue or the need for discovery may make it inappropriate for a proceeding to be commenced by application.”
May 5, 2011
Link to Decision
Steve Holinski & Ryan MacIsaac
Canadian Union of Public Employees v. Hachey, 2011 NBCA 41
In this case, the Court of Appeal of New Brunswick refused to appoint or confirm a receiver in the context of a dispute over the ownership of the assets of a “chartered local” union that had severed contractual ties with the parent union. The parent union had appointed a receiver to gather information relating to the identification and ownership of assets held by the local union. The parent union then applied to the court for confirmation of the appointment. Justice Robertson dismissed the appeal, holding that a court would not appoint or confirm a receiver for the sole purpose of identifying ownership of the assets. Further, it is a prerequisite to seizure that ownership be established. Accordingly, the parent union must initiate an originating process to first resolve the issue of ownership before a receiver can be appointed.
The parent union's constitution and by-laws provided that local unions were "subordinate" and that the property of any local union would become that of the parent union upon dissolution; however, ownership over assets was disputed by the members of the local union. Following the local union's break-away, the parent union appointed one of its employees as a receiver, and applied for an order to grant the receiver authority to compel production of documents pertaining to the assets of the local union. The court noted a lack of jurisprudence in relation to a court's power to appoint and confirm receivers under Rule 41 of New Brunswick's Rules of Court. The requirements for confirmation of a receiver under Rule 41 state that the applicant must have an "interest in the property". Finding that the ownership of the assets was in dispute, the court held that the parent union lacked an "interest in the property." Accordingly, the application judge’s denial of confirmation was upheld.
May 5, 2011
Link to Decision
Grant Bishop & Steve Holinski
The parent union's constitution and by-laws provided that local unions were "subordinate" and that the property of any local union would become that of the parent union upon dissolution; however, ownership over assets was disputed by the members of the local union. Following the local union's break-away, the parent union appointed one of its employees as a receiver, and applied for an order to grant the receiver authority to compel production of documents pertaining to the assets of the local union. The court noted a lack of jurisprudence in relation to a court's power to appoint and confirm receivers under Rule 41 of New Brunswick's Rules of Court. The requirements for confirmation of a receiver under Rule 41 state that the applicant must have an "interest in the property". Finding that the ownership of the assets was in dispute, the court held that the parent union lacked an "interest in the property." Accordingly, the application judge’s denial of confirmation was upheld.
May 5, 2011
Link to Decision
Grant Bishop & Steve Holinski
Subscribe to:
Posts (Atom)