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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Civil Procedure

COSTS

Risks of costs being awarded did not disappear when complainant decided not to defend tribunal’s determination

Canadian International Trade Tribunal made procurement determinations upholding, in part, complaints made by complainant pursuant to Canadian International Trade Tribunal Act. Complaints related to contracts issued to qualified bidders in process governed by Networking Equipment Support Services National Master Standing Offer which is means by which federal government departments may obtain computer networking equipment. Crown contended tribunal lacked jurisdiction to determine complaints because complainant did not submit bid. Tribunal found that no act of Public Works and Government Services Canada (“PWGSC”) in procurement process precluded complainant from submitting bid. Crown’s application for judicial review granted. Amount of costs awarded to Crown should not be reduced or limited because complainant did not oppose consolidated application. Crown not relieved of normal burden on applicant to produce record, prepare memorandum of fact and law, and appear at hearing to make submissions. Having initiated complaint proceedings, complainant bore risk that tribunal’s determinations might be successfully challenged and that Crown might be awarded costs. Risk did not disappear when complainant decided not to defend tribunal’s determination.

Enterasys Networks of Canada Ltd. v. Department of Public Works and Government Services (June 20, 2011, F.C.A., Blais C.J., Sharlow and Mainville JJ.A., File No. A-264-10; A-312-10; A-321-10) 204 A.C.W.S. (3d) 899 (18 pp.).

Crown

PRIVILEGE

Informer privilege did not apply to Canadian Security Intelligence Service human sources

This was appeal from Federal Court Judge’s decision ordering disclosure of documents that were allegedly sensitive and potentially injurious. Appeal allowed. Three-prong test to be applied was set out in R. v. Ribic (2003), 185 C.C.C. (3d) 129 (F.C.A.). Judge must first determine whether information sought to be disclosed was relevant to proceedings in which it was intended to be used. If information met relevancy test judge must determine whether disclosure of information would be injurious to international relations, national defence or national security. If judge was satisfied that disclosure of sensitive information would result in injury judge must determine whether public interest in disclosure outweighed public interest in non-disclosure. Informer privilege did not apply to Canadian Security Intelligence Service human sources, as that would be contrary to s. 38 of Canada Evidence Act and express will of Parliament. However, in applying Ribic test judge either discounted evidence of injury or did not give it weight it deserved. Judge committed palpable and overriding error and disclosure order was set aside.

Canada (Attorney General) v. Kalifah
(June 13, 2011, F.C.A., Blais C.J., Letourneau and Trudel JJ.A., File No. A-428-10) 203 A.C.W.S. (3d) 771 (32 pp.).

Civil Procedure

COSTS

No special reasons in case justifying award of costs

Appellant was successful in appealing judgment dismissing application for judicial review of decision under Immigration and Refugee Protection Act (Can.). No submissions on costs appeared in memorandum of fact and law. No submissions on costs were made at hearing. Judgment on appeal and reasons for judgment were silent on costs. Appellant brought motion for order granting costs on solicitor-and-client basis. Motion was dismissed. Motion for costs was subject to Rule 22 of Federal Court Immigration and Refugee Protection Rules (Can.), which precluded award of costs in absence of special reasons. There were no special reasons in case justifying award of costs in favour of appellant.

Ndungu v. Canada (Minister of Citizenship and Immigration)
(June 21, 2011, F.C.A., Sharlow, Dawson and Layden-Stevenson JJ.A., File No. A-501-09) 204 A.C.W.S. (3d) 31 (11 pp.).
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