In Greater Vancouver Regional District v. British Columbia, the British Columbia Court of Appeal clarified the interpretation of s.3(c) of the Local Government Act, R.S.B.C. The issue arose in the context of challenge brought by the Greater Vancouver Regional District ("GVRD") that the Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act ("Reconciliation Act") was ultra vires the British Columbia Legislature. Dismissing the appeal, Justice Newbury held for the court that s.3(c) does not create obligations for the Province of British Columbia nor a right for the GVRD for notice to be given.
"Block F" and "Block K" ("Park Lands") were sold to the GVRD by the Province in 1989 subject to the condition that it was without prejudice to the Musqueam claim over the lands. In 2008, a "Settlement Agreement" was reached in which the Park Lands were transferred to two companies designated by the Musqueam in exchange for the settlement of certain claims. The Reconciliation Act that then came into force provided that all claims the GVRD had were extinguished. In challenging the constitutionality of the Reconciliation Act, the GVRD claimed that the Province violated s. 3 of the Local Government Act in transferring the lands due to inadequate notice to them.
Newbury J. held that s.3 (c) only stated the "aspirational principle" that there should be notice for actions affecting regional interest such as that of the GVRD's, and should be treated like language in the preamble of a statute. Since the section does not state that the Province would necessarily provide such notification, it does not constitute a "manner and form" restraint on the Province's authority to enact new legislation, and therefore neither a legal obligation on the Province nor a right for GVRD was created. GVRD was denied the declaratory relief it sought and the appeal was dismissed.
August 15, 2011
Link to Decision
Adrienne Ho
*
Monday, August 15, 2011
Wednesday, August 10, 2011
Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240
In this case, the Alberta Court of Appeal clarified, in obiter, several points of employment law relating to non-competition covenants. First, the Court stated that non-competition covenants are not enforceable against an employee whose employment contract has been wrongfully terminated. Second, the Court stated that continued employment, without more, is not sufficient consideration for making an amendment to the employment contract - namely, a non-competition covenant - that is adverse to the employee.
The case concerned three employees who agreed to non-competition covenants with Globex Foreign Exchange Corporation. One employee was wrongfully dismissed by the company; the other two agreed to the covenants during their employment, but received no new benefits for doing so, and later left the company. All three were sued by Globex for violating the non-competition covenants, but the trial judge found none of the covenants to be enforceable.
Justice Hunt, for the Alberta Court of Appeal, found that the non-competition covenants were unenforceable because they were overly broad and vague, and therefore violated the reasonableness test in Shafron v. KRG Insurance Brokers (Western) Inc., a 2009 Supreme Court of Canada case. In obiter, Justice Hunt stated that the General Billposting principle - that an employer cannot enforce a non-competition covenant against an employee that it has wrongfully dismissed - remains good law in Canada. Justice Hunt, referring to a 2005 Alberta Court of Appeal case dealing with the same matter, further stated that continued employment, without more, can not serve as consideration for an amendment to the employment contract that is adverse to the employee.
In dissent, Justice Slatter disputed the majority's holding on grounds relating to the standard of review. He also disagreed with the two issues addressed above. Justice Slatter argued that General Billposting is inconsistent with later Supreme Court of Canada cases, and therefore would not have applied it. Instead, he would have held that, despite the wrongful termination of an employment contract, non-competition covenants in that contract are still enforceable. Justice Slatter also would have held that continued employment can serve as consideration for an amendment to the employment contract. He reasoned that, since ongoing "at will" employment can be terminated at any time, a "tacit promise" that the employment would not soon be terminated could be found in this case.
August 10, 2011
Link to Decision
Sierra Robart & Kai Sheffield
*
The case concerned three employees who agreed to non-competition covenants with Globex Foreign Exchange Corporation. One employee was wrongfully dismissed by the company; the other two agreed to the covenants during their employment, but received no new benefits for doing so, and later left the company. All three were sued by Globex for violating the non-competition covenants, but the trial judge found none of the covenants to be enforceable.
Justice Hunt, for the Alberta Court of Appeal, found that the non-competition covenants were unenforceable because they were overly broad and vague, and therefore violated the reasonableness test in Shafron v. KRG Insurance Brokers (Western) Inc., a 2009 Supreme Court of Canada case. In obiter, Justice Hunt stated that the General Billposting principle - that an employer cannot enforce a non-competition covenant against an employee that it has wrongfully dismissed - remains good law in Canada. Justice Hunt, referring to a 2005 Alberta Court of Appeal case dealing with the same matter, further stated that continued employment, without more, can not serve as consideration for an amendment to the employment contract that is adverse to the employee.
In dissent, Justice Slatter disputed the majority's holding on grounds relating to the standard of review. He also disagreed with the two issues addressed above. Justice Slatter argued that General Billposting is inconsistent with later Supreme Court of Canada cases, and therefore would not have applied it. Instead, he would have held that, despite the wrongful termination of an employment contract, non-competition covenants in that contract are still enforceable. Justice Slatter also would have held that continued employment can serve as consideration for an amendment to the employment contract. He reasoned that, since ongoing "at will" employment can be terminated at any time, a "tacit promise" that the employment would not soon be terminated could be found in this case.
August 10, 2011
Link to Decision
Sierra Robart & Kai Sheffield
*
Tuesday, August 9, 2011
R. v. Tasew, 2011 ABCA 241
In R. v. Tasew the Alberta Court of Appeal considered the approach to be taken by a sentencing judge who identifies two alternative sentences, either of which would be fit for the offence and the offender. Slatter J.A., writing for the majority, held that in those circumstances the offender is entitled to receive the least onerous of the suitable sentences. Watson J.A. dissented in the result, but the Court was unanimous that it is not the mandate of the sentencing judge to compile a list of alternative sentences and leave it to the appellate court to select among them.
The trial judge sentenced the appellant to life imprisonment for attempted murder, but also identified a lighter alternative sentence that would be fit "in the case that someone considers the life imprisonment is inappropriate". Slatter J.A. noted that there is never one "fit" sentence, and it is possible that in a particular case several different sentences could meet the objectives of sentencing in the Criminal Code and survive appellate review. However, he held that despite the sentencing judge's good intentions, his approach was inconsistent with the proper administration of justice. Justice Slatter found that either sentence identified by the trial judge could have withstood judicial review, and imposed the alternative he identified because it was less onerous.
Watson J.A. agreed that the trial judge's approach was inappropriate and that an offender is entitled to receive the least onerous of potential fit sentences. However, he found that the alternative sentence was not fit and therefore would have affirmed the sentence imposed at trial.
August 9, 2011
Link to Decision
Diego Beltran, Marc Gibson & Daniel Lo
*
The trial judge sentenced the appellant to life imprisonment for attempted murder, but also identified a lighter alternative sentence that would be fit "in the case that someone considers the life imprisonment is inappropriate". Slatter J.A. noted that there is never one "fit" sentence, and it is possible that in a particular case several different sentences could meet the objectives of sentencing in the Criminal Code and survive appellate review. However, he held that despite the sentencing judge's good intentions, his approach was inconsistent with the proper administration of justice. Justice Slatter found that either sentence identified by the trial judge could have withstood judicial review, and imposed the alternative he identified because it was less onerous.
Watson J.A. agreed that the trial judge's approach was inappropriate and that an offender is entitled to receive the least onerous of potential fit sentences. However, he found that the alternative sentence was not fit and therefore would have affirmed the sentence imposed at trial.
August 9, 2011
Link to Decision
Diego Beltran, Marc Gibson & Daniel Lo
*
Thursday, August 4, 2011
Reece v. Edmonton, 2011 ABCA 238
In Reece v. Edmonton, the Court of Appeal of Alberta held that it was an abuse of process for two public interest organisations to initiate civil proceedings to enforce the punitive penal provisions of an animal welfare statute where the government had omitted to do so. Chief Justice Fraser, in dissent, argued that the groups should be granted public interest standing and allowed to seek a declaratory judgment against the City.
The applicants, Zoocheck Canada and the People for the Ethical Treatment of Animals Inc (PETA), filed for an Originating Notice seeking a judicial declaration that the City of Edmonton, as operator of the Edmonton Valley Zoo, was causing "distress" to its lone elephant, Lucy, in contravention of Alberta's Animal Protection Act. The Chambers judge granted City’s motion to strike the notice as it was an abuse of process for private litigants to initiate civil proceedings to enforce punitive penal sanctions. The Chambers judge also found that there were more appropriate remedies available through the Animal Protection Act and Wildlife Act 2000. Affirming the decision of the Chambers judge, the Court of Appeal dismissed the appeal, holding that the applicants' filing was an abuse of process. Noting that the courts have generally denied applications for a declaration that the respondent is in breach of a penal statute, even where the applicant has been granted public interest standing, the Court argued that such applications undermine the presumption of innocence in penal proceedings, the jurisdiction of the criminal courts, the authority of the Attorney-General, and the authority of the agency that grants zoo licences. The appropriate remedy available to the appellants, in the Court's view, was to file a complaint with the local Humane Society, leaving the enforcement of penal statutes to the Attorney-General.
Chief Justice Fraser, in dissent, found that the appellants should be granted public interest standing and that the appeal should be allowed to proceed under an amended pleading. She rejected the finding of abuse of process and criticized the majority for failing to resolve the issue of public interest standing, arguing that the case raised novel and serious issues of law and thus merited legal consideration. Reviewing the historical and legal context of animal protection laws, Justice Fraser argued that although the legal regime in regards to animals has evolved in the past 250 years from an "exploitative" model to one of "animal welfare," there are still serious deficiencies in the actual protection accorded to animals that demand a generous interpretation of animal protection laws by the courts - in particular, by acknowledging that animals cannot commence lawsuits on their own and enabling humans to do so for them by taking a generous approach to public interest standing in animal welfare cases. Justice Fraser also argued that civil enforcement of punitive sanctions could occur alongside enforcement by the Attorney-General, and that this would enhance the rule of law rather than undermine legal authority.
August 4, 2011
Link to Decision
Jen-Yii Liew & Kai Sheffield
The applicants, Zoocheck Canada and the People for the Ethical Treatment of Animals Inc (PETA), filed for an Originating Notice seeking a judicial declaration that the City of Edmonton, as operator of the Edmonton Valley Zoo, was causing "distress" to its lone elephant, Lucy, in contravention of Alberta's Animal Protection Act. The Chambers judge granted City’s motion to strike the notice as it was an abuse of process for private litigants to initiate civil proceedings to enforce punitive penal sanctions. The Chambers judge also found that there were more appropriate remedies available through the Animal Protection Act and Wildlife Act 2000. Affirming the decision of the Chambers judge, the Court of Appeal dismissed the appeal, holding that the applicants' filing was an abuse of process. Noting that the courts have generally denied applications for a declaration that the respondent is in breach of a penal statute, even where the applicant has been granted public interest standing, the Court argued that such applications undermine the presumption of innocence in penal proceedings, the jurisdiction of the criminal courts, the authority of the Attorney-General, and the authority of the agency that grants zoo licences. The appropriate remedy available to the appellants, in the Court's view, was to file a complaint with the local Humane Society, leaving the enforcement of penal statutes to the Attorney-General.
Chief Justice Fraser, in dissent, found that the appellants should be granted public interest standing and that the appeal should be allowed to proceed under an amended pleading. She rejected the finding of abuse of process and criticized the majority for failing to resolve the issue of public interest standing, arguing that the case raised novel and serious issues of law and thus merited legal consideration. Reviewing the historical and legal context of animal protection laws, Justice Fraser argued that although the legal regime in regards to animals has evolved in the past 250 years from an "exploitative" model to one of "animal welfare," there are still serious deficiencies in the actual protection accorded to animals that demand a generous interpretation of animal protection laws by the courts - in particular, by acknowledging that animals cannot commence lawsuits on their own and enabling humans to do so for them by taking a generous approach to public interest standing in animal welfare cases. Justice Fraser also argued that civil enforcement of punitive sanctions could occur alongside enforcement by the Attorney-General, and that this would enhance the rule of law rather than undermine legal authority.
August 4, 2011
Link to Decision
Jen-Yii Liew & Kai Sheffield
Wednesday, August 3, 2011
R. v. Cunningham, 2011 ONCA 543
In this appeal the court considered whether the written reasons of the trial judge, issued more than two years after the decision was rendered, could be taken as truly reflective of the trial judge’s reasons for acquitting the respondent. Doherty J.A. held that, due to the length of time between the decision and the issuance of reasons, and other factors, the written reasons were not truly reflective of the trial judge's reasons.
Doherty, J.A. applied the principles from R. v. Teskey ([2007] 2 SCR 267), including the rebuttable presumption that the reasons reflect the reasoning that led the judge to her decision. However, he distinguished this case on the facts from Teskey, a case in which written reasons were delayed for 11 months. He also distinguished this case from R. v. Port Chevrolet Oldsmobile Ltd. 2009 BCCA 357, a case with an 18 month delay, because 25 months was a "much longer" period of time, and because the facts in Cunningham, unlike in Port Chevrolet Oldsmobile, were in dispute, increasing the risk that long-delayed written reasons would not reflect the judicial reasoning process.
August 3, 2011
Link to Decision
Rebecca Crangle & Kai Sheffield
*
Doherty, J.A. applied the principles from R. v. Teskey ([2007] 2 SCR 267), including the rebuttable presumption that the reasons reflect the reasoning that led the judge to her decision. However, he distinguished this case on the facts from Teskey, a case in which written reasons were delayed for 11 months. He also distinguished this case from R. v. Port Chevrolet Oldsmobile Ltd. 2009 BCCA 357, a case with an 18 month delay, because 25 months was a "much longer" period of time, and because the facts in Cunningham, unlike in Port Chevrolet Oldsmobile, were in dispute, increasing the risk that long-delayed written reasons would not reflect the judicial reasoning process.
August 3, 2011
Link to Decision
Rebecca Crangle & Kai Sheffield
*
Tuesday, August 2, 2011
Waterman v. IBM Canada Limited, 2011 BCCA 337
In this case, the British Columbia Court of Appeal considered the issue of the deductibility of pension benefits from an award of damages for wrongful dismissal. Mr. Waterman, upon being wrongfully dismissed from IBM, automatically began receiving pension benefits because of his age upon dismissal. Madam Justice Prowse ruled that these pension benefits should not be deducted from the damages awarded for wrongful dismissal and accordingly dismissed the appeal.
Mr. Waterman, at the age of 65, was dismissed without cause and notice from IBM. Upon termination, he began receiving pension benefits from IBM’s defined benefit pension plan (which was wholly funded by IBM). He sued IBM for wrongful dismissal and was awarded damages. IBM argued that the pension benefits should be deducted from the damage award, as disability benefits were in Sylvester v. British Columbia, but the trial judge came to the opposite conclusion. The Court of Appeal concurred, distinguishing this case from Sylvester because of the nature of the benefits. The Court noted that disability benefits and pension benefits have historically been distinguished: pension benefits are not substitute for wages but a benefit earned by being an employee for a specified period of time. It is also clear from the contractual relationship between the parties that they did not consider the pension to be a substitute for salary. Madam Justice Prowse therefore came to the conclusion that pension benefits should not be deducted from an award of damages and dismissed the appeal.
August 2, 2011
Link to Decision
Sam Golder & Dominik Swierad
Mr. Waterman, at the age of 65, was dismissed without cause and notice from IBM. Upon termination, he began receiving pension benefits from IBM’s defined benefit pension plan (which was wholly funded by IBM). He sued IBM for wrongful dismissal and was awarded damages. IBM argued that the pension benefits should be deducted from the damage award, as disability benefits were in Sylvester v. British Columbia, but the trial judge came to the opposite conclusion. The Court of Appeal concurred, distinguishing this case from Sylvester because of the nature of the benefits. The Court noted that disability benefits and pension benefits have historically been distinguished: pension benefits are not substitute for wages but a benefit earned by being an employee for a specified period of time. It is also clear from the contractual relationship between the parties that they did not consider the pension to be a substitute for salary. Madam Justice Prowse therefore came to the conclusion that pension benefits should not be deducted from an award of damages and dismissed the appeal.
August 2, 2011
Link to Decision
Sam Golder & Dominik Swierad
Friday, July 29, 2011
R. v. K.P., 2011 ABCA 233
In R v. K.P., the Alberta Court of Appeal ruled on the validity of a City of Calgary bylaw mandating minimum fines for both adult and young offenders. Justice Rowbotham held that the mandatory minimum fine provisions are inconsistent with the Youth Justice Act ("YJA") as s. 15(5) of that Act dictates that community service and/or probation may be imposed instead of a fine where appropriate.
The issue arose in the context of a 13 year old whom, after being caught applying graffiti to various buildings, was given the mandatory minimum fine of $500. The Court of Queen’s Bench upon appeal ruled that the YJA “completely and exhaustively occupied the legislative field” so there was no room for Calgary City to council to impose a mandatory minimum fine. Justice Rowbatham came to the same conclusion. The appeal was dismissed and the case remitted to the youth court judge for sentencing according to the YJA sentencing scheme.
July 29, 2011
Link to Decision
Sam Golder & Dominik Swierad
*
The issue arose in the context of a 13 year old whom, after being caught applying graffiti to various buildings, was given the mandatory minimum fine of $500. The Court of Queen’s Bench upon appeal ruled that the YJA “completely and exhaustively occupied the legislative field” so there was no room for Calgary City to council to impose a mandatory minimum fine. Justice Rowbatham came to the same conclusion. The appeal was dismissed and the case remitted to the youth court judge for sentencing according to the YJA sentencing scheme.
July 29, 2011
Link to Decision
Sam Golder & Dominik Swierad
*
Subscribe to:
Posts (Atom)