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
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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
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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
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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
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