In T. (R.A.), the British Columbia Court of Appeal held that a person is "subject to a sentence” within the meaning of s. 490.02 of the Criminal Code when they are subject to a lifelong firearms ban in accordance with s. 109 of the Criminal Code.
The appellant was convicted of sexual assault in 1994 and sentenced to both a prison sentence and a lifelong firearms ban. After the completion of the appellant’s prison sentence, Parliament passed the Sexual Offender Information Registration Act. It required the registration and reporting of individuals convicted of certain crimes such as sexual assault. The Act only applies retrospectively if the offender was still “subject to a sentence.” The appellant challenged that the Act did not apply to him as the prohibition did not qualify as a sentence. Saunders J.A. rejected this argument, finding that other areas of the Criminal Code treat a firearms prohibition as a sentence, and drawing support from a previous sentencing case, R. v. Ferguson.
June 8, 2011
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Sam Golder, Kai Sheffield & Dominik Swierad
Wednesday, June 8, 2011
Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194
In this case, the Federal Court of Appeal considered the scope of the Governor in Council's (GIC) jurisdiction in the context of reviewing decisions of the Canadian Radio-television and Telecommunications Commission (CRTC). In obiter dicta, Sexton J.A. wrote that policy considerations may inform the Governor in Council's application of the control in fact test pursuant to s. 16(3) of the Telecommunications Act, S.C. 1993, chapter 38. He assumed, without deciding, that the standard of review on this issue would be correctness, but found that the decision under review did not incorporate policy considerations until the question of control had already been resolved.
The initial CRTC decision applied the Canadian Airlines test and concluded that the appellant Globalive was controlled by a non-Canadian and therefore ineligible to operate as a telecommunications common carrier in Canada. The GIC applied the same test in reviewing that decision, but disagreed that the appellant Globalive was controlled by a non-Canadian.
Justice Sexton held that the GIC decision was reasonable and did not incorporate policy aspects until it considered whether or not to vary the decision of the CRTC. However, Justice Sexton added that even if the GIC had considered appropriate policy concerns when applying the control in fact test, it would not constitute a reviewable error. He noted that rather than giving courts the exclusive right to review CRTC decisions, "the fact Parliament chose to grant the Governor in ouncil the right to review the CRTC’s application of the control in fact test implies the decision was intended to incorporate policy concerns when appropriate." Justice Sexton therefore found that even if the GIC had incorporated policy considerations into its decision, it would have been not only reasonable, but correct to do so.
June 8, 2011
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Marc Gibson
The initial CRTC decision applied the Canadian Airlines test and concluded that the appellant Globalive was controlled by a non-Canadian and therefore ineligible to operate as a telecommunications common carrier in Canada. The GIC applied the same test in reviewing that decision, but disagreed that the appellant Globalive was controlled by a non-Canadian.
Justice Sexton held that the GIC decision was reasonable and did not incorporate policy aspects until it considered whether or not to vary the decision of the CRTC. However, Justice Sexton added that even if the GIC had considered appropriate policy concerns when applying the control in fact test, it would not constitute a reviewable error. He noted that rather than giving courts the exclusive right to review CRTC decisions, "the fact Parliament chose to grant the Governor in ouncil the right to review the CRTC’s application of the control in fact test implies the decision was intended to incorporate policy concerns when appropriate." Justice Sexton therefore found that even if the GIC had incorporated policy considerations into its decision, it would have been not only reasonable, but correct to do so.
June 8, 2011
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Marc Gibson
Tuesday, June 7, 2011
Hussack v. Chilliwack School District No. 33, 2011 BCCA 258
In Hussack v. Chilliwack School District No. 33, the Court partially allowed the appeal by a school board regarding damages awarded to a student for breach of duty of care. The case could be significant in that it clarified how the doctrine of novus actus interveniens is applied and confirmed that the appropriate test is foreseeability of subsequent conduct rather than unreasonableness.
Devon Hussack, a student within the Chilliwack School District, suffered a concussion as a result of an incident during a field hockey game at the school. He subsequently developed a psychiatric disorder that manifested itself in difficulties that he believed were physical in nature. Devon was parented solely by his overprotective father who interfered with his son’s medical treatment and school attendance.
Justice Bennett did not find error in the trial judge’s conclusion that the hockey incident represented cause in fact and law in spite of contributing factors. Bennett J.A. then analysed the issue of novus actus interveniens to address the school board’s argument that Mr. Hussack’s conduct amounted to a new intervening act which broke the chain of causation. The trial judge had found that Mr. Hussack’s actions were foreseeable and did not, therefore, represent a new act. The school board argued that reasonableness rather than foreseeability was the appropriate test and cited a series of cases that applied novus actus interveniens to unreasonable subsequent actions by family members. Bennett J.A. rejected the argument and characterized the "family cases" as dealing with "unusual" circumstances, rather than creating new law. She affirmed foreseeability as the appropriate test and deferred to the train judge’s conclusion on the facts that Mr. Hussack’s conduct did not represent a new act.
June 7, 2011
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Radostina Pavlova & Dominik Swierad
Devon Hussack, a student within the Chilliwack School District, suffered a concussion as a result of an incident during a field hockey game at the school. He subsequently developed a psychiatric disorder that manifested itself in difficulties that he believed were physical in nature. Devon was parented solely by his overprotective father who interfered with his son’s medical treatment and school attendance.
Justice Bennett did not find error in the trial judge’s conclusion that the hockey incident represented cause in fact and law in spite of contributing factors. Bennett J.A. then analysed the issue of novus actus interveniens to address the school board’s argument that Mr. Hussack’s conduct amounted to a new intervening act which broke the chain of causation. The trial judge had found that Mr. Hussack’s actions were foreseeable and did not, therefore, represent a new act. The school board argued that reasonableness rather than foreseeability was the appropriate test and cited a series of cases that applied novus actus interveniens to unreasonable subsequent actions by family members. Bennett J.A. rejected the argument and characterized the "family cases" as dealing with "unusual" circumstances, rather than creating new law. She affirmed foreseeability as the appropriate test and deferred to the train judge’s conclusion on the facts that Mr. Hussack’s conduct did not represent a new act.
June 7, 2011
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Radostina Pavlova & Dominik Swierad
Thursday, June 2, 2011
Williamson et al. v. Gillis et al., 2011 NBCA 53
In Williamson v. Gillis, the New Brunswick Court of Appeal clarified whether, when seeking security for costs pursuant to Rule 58.01 of the Rules of Court, a defendant must expressly depose to having a bona fide defence. The court ruled that no such affidavit is required.
Justice Richard reached this conclusion because other rules of court mandate specific language in support of applications or motions, whereas Rule 58.01 has no such language. As well, this approach is consistent with the jurisprudence surrounding Rule 58.10 (security for costs upon appeal). The Court held that the merits of the defense’s case should be considered when exercising judicial discretion in adjudicating a motion seeking security for costs, but a failure to set out sufficient facts is not fatal to the motion.
June 2, 2011
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Sam Golder & Dominik Swierad
Justice Richard reached this conclusion because other rules of court mandate specific language in support of applications or motions, whereas Rule 58.01 has no such language. As well, this approach is consistent with the jurisprudence surrounding Rule 58.10 (security for costs upon appeal). The Court held that the merits of the defense’s case should be considered when exercising judicial discretion in adjudicating a motion seeking security for costs, but a failure to set out sufficient facts is not fatal to the motion.
June 2, 2011
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Sam Golder & Dominik Swierad
Viroforce Systems Inc. v. R&D Capital Inc., 2011 BCCA 260
The British Columbia Court of Appeal considered how forum selection clauses are to be treated in the analysis of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (the "Act"), to determine whether the British Columbia Court should take jurisdiction. The Court held that the Act doesn’t alter the general approach to be taken when the parties agree to a forum selection clause.
The parties had agreed by contract to be governed exclusively by the laws of Quebec. Section 3(c) of the Act contains the only reference in the Act to forum selection clauses, but this deals only with the situation where the parties have agreed that British Columbia will be the forum. The court held that the Act does not alter the general approach to be taken when the parties agree to a forum selection clause. If the court has or can assume jurisdiction, it should decline jurisdiction if there is a forum selection clause or if there is a determination of forum non conveniens. The existence of a forum selection clause can be sufficient reason for a court to decline jurisdiction, and it is not simply a factor to consider in making a determination under s. 11. In this case, the forum selection clause was enforced and the appeal dismissed.
June 2, 2011
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Fidelia Ho
The parties had agreed by contract to be governed exclusively by the laws of Quebec. Section 3(c) of the Act contains the only reference in the Act to forum selection clauses, but this deals only with the situation where the parties have agreed that British Columbia will be the forum. The court held that the Act does not alter the general approach to be taken when the parties agree to a forum selection clause. If the court has or can assume jurisdiction, it should decline jurisdiction if there is a forum selection clause or if there is a determination of forum non conveniens. The existence of a forum selection clause can be sufficient reason for a court to decline jurisdiction, and it is not simply a factor to consider in making a determination under s. 11. In this case, the forum selection clause was enforced and the appeal dismissed.
June 2, 2011
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Fidelia Ho
Bozzer v. Canada, 2011 FCA 186
In Bozzer v. Canada, the Federal Court of Appeal considered the proper interpretation of section 220(3.1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) This section allows the Minister to waive or cancel any or all of the penalties or interest payable by a taxpayer under the Act in respect of that taxation year, subject to a ten year limitation clause. The appellant Mr. Bozzer applied to waive the interest on his outstanding 1989 and 1990 taxes in 2005, which the Minister refused as the application was more than ten years after the assessment year. The respondent Minister argued that the ten year limitation clause starts with the year of assessment. Mr. Bozzer argued that section 220(3.1) allows the Minister to waive or cancel any interest that accrued in the ten years preceding the application for relief.
The court held that Mr. Bozzer’s interpretation was proper for several reasons. First, the section in question was added as part of a fairness package intended on helping taxpayers who, through no fault of their own, could not comply with the statutory requirements for income tax purposes or resolve other issues. The Minister’s interpretations could be harsh in a few rare scenarios, such as in the case of grievous accident. Second, prior to the legislative amendment, the relevant section did not have a ten year limitation clause. As the amendment restricts the taxpayer’s rights, it is incumbent on Parliament to be clear in its language as to its intention and any ambiguity should be resolved in favour of the taxpayer. Lastly, Parliament was aware and able to draft a section that would suit the Minister’s interpretation strictly, but did not. The arguments put forward by the respondent Minister, referring to the Technical Notes and Voluntary Disclosures program were not accepted by the court.
June 2, 2011
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Mary Phan
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The court held that Mr. Bozzer’s interpretation was proper for several reasons. First, the section in question was added as part of a fairness package intended on helping taxpayers who, through no fault of their own, could not comply with the statutory requirements for income tax purposes or resolve other issues. The Minister’s interpretations could be harsh in a few rare scenarios, such as in the case of grievous accident. Second, prior to the legislative amendment, the relevant section did not have a ten year limitation clause. As the amendment restricts the taxpayer’s rights, it is incumbent on Parliament to be clear in its language as to its intention and any ambiguity should be resolved in favour of the taxpayer. Lastly, Parliament was aware and able to draft a section that would suit the Minister’s interpretation strictly, but did not. The arguments put forward by the respondent Minister, referring to the Technical Notes and Voluntary Disclosures program were not accepted by the court.
June 2, 2011
Link to Decision
Mary Phan
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Nadeau Poultry Farm Limited v. Groupe Westco Inc., 2011 FCA 188
In this case, the Federal Court of Appeal clarified the legal approach to determining the existence of a "refusal to deal" under section 75 of the Competition Act, RSC 1985, c C-34.
In New Brunswick and other provinces, chickens are produced under a system of supply management, and marketing boards establish both the production quota for each province and a minimum price that producers in the province may accept when selling chickens. Inter-provincial trade in chickens is permitted, but marketing boards may intervene to prevent such trade. Deferring to the Competition Tribunal’s findings of facts and upholding its analytical approach, the Court of Appeal held that the appellant had not established that: 1) live chickens (the product) were in inadequate supply because of insufficient competition; 2) live chickens are in ample supply; and 3) the refusal to deal is having or is likely to have an adverse effect on competition in a market.
On the conclusion that the supply management system precluded an ample supply, the Court restated the test for “ample supply” as: “a product is in ample supply when producers of that product have the capacity to increase production in a timely way to meet increases in demand for the product.” For the adverse impact on competition in a market, the Court rejected the appellant’s argument that this element could relate to the same “relevant market” that was considered in the first two elements of section 75 (here, the upstream market for live chickens), holding that it would be redundant to require evidence of distortion in a market already marked by insufficient competition and that this final element must relate to an adverse impact on competition in a different market (here, the downstream market for processed chickens).
June 2, 2011
Link to Decision
Grant Bishop
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In New Brunswick and other provinces, chickens are produced under a system of supply management, and marketing boards establish both the production quota for each province and a minimum price that producers in the province may accept when selling chickens. Inter-provincial trade in chickens is permitted, but marketing boards may intervene to prevent such trade. Deferring to the Competition Tribunal’s findings of facts and upholding its analytical approach, the Court of Appeal held that the appellant had not established that: 1) live chickens (the product) were in inadequate supply because of insufficient competition; 2) live chickens are in ample supply; and 3) the refusal to deal is having or is likely to have an adverse effect on competition in a market.
On the conclusion that the supply management system precluded an ample supply, the Court restated the test for “ample supply” as: “a product is in ample supply when producers of that product have the capacity to increase production in a timely way to meet increases in demand for the product.” For the adverse impact on competition in a market, the Court rejected the appellant’s argument that this element could relate to the same “relevant market” that was considered in the first two elements of section 75 (here, the upstream market for live chickens), holding that it would be redundant to require evidence of distortion in a market already marked by insufficient competition and that this final element must relate to an adverse impact on competition in a different market (here, the downstream market for processed chickens).
June 2, 2011
Link to Decision
Grant Bishop
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