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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 Practice and Procedure

Practice on appeal

Staying of proceedings pending appeal

Board obtained stay of tribunal’s order pending appeal

Toronto Real Estate Board was not-for-profit corporation whose members acted as real estate agents or brokers, and all of its members were also members of Canadian Real Estate Association. Board offered services to its members, including access to MLS database which contained extensive information about listed properties, but members were restricted to what portions of information they could place on their own websites that were made available to members of public. Commissioner of Competition complained that certain of board’s practices violated s. 79 of Competition Act. Competition tribunal found that MLS rules that prohibited board’s members from posting information to their own websites about sold, withdrawn, expired, suspended or terminated listings and about details of pending sold listings constituted abuse of dominant position under s. 79 of Act. Board appealed. Board brought motion for stay of tribunal’s order pending disposition of appeal. Motion granted. Board met threshold of raising at least one serious issue with respect to possibility that tribunal’s order failed to give adequate consideration to property owners’ privacy rights. There was non-frivolous argument that tribunal did not fully consider all relevant potential impacts of its order on third party privacy interests. Board would suffer irreparable harm if requested stay was not granted because there was real possibility that it would lose control over data order required it to permit its members to post on their websites. Once information was available on internet it could be copied, and there was no way to ensure that all copies would be retrieved by board if they were successful on appeal, which would render appeal nugatory. Balance of convenience favoured stay given potential for interference with third party privacy interests and fact that stay would effectively continue status quo. Appeal should be expedited to minimize detriment to public interest in having violation of Act remedied as soon as possible.
Toronto Real Estate Board v. Canada (Commissioner of Competition) (2016), 2016 CarswellNat 6636, 2016 CarswellNat 6637, 2016 FCA 204, 2016 CAF 204, Mary J.L. Gleason J.A. (F.C.A.).

Constitutional Law

Procedure in constitutional challenges

Miscellaneous

Amended statement of claim was struck in its entirety

Plaintiffs, economic think-tank and its members, brought action against Crown defendants with respect to Parliament’s handling of economic and monetary issues, challenging constitutionality of Bank of Canada Act and alleging conspiracy and misfeasance in public office. Crown’s motion to strike statement of claim was granted. On plaintiffs’ appeal, they were granted leave to amend. Plaintiffs’ amended statement of claim abandoned claims under ss. 7 and 15 of Canadian Charter of Rights and Freedoms and instead claims breach of s.3 of Charter. Crown’s motion to strike plaintiffs’ amended statement of claim in its entirety was granted, without leave to further amend, with motion judge ruling that it did not disclose reasonable cause of action as plaintiffs were asking for advisory opinion via declarations. Plaintiffs appealed. Appeal dismissed. Plaintiffs reiterated their arguments, focusing on issue of standing and right to seek declarations of constitutionality. Right to remedy was conditional on existence of justiciable issue. Even on least deferential standard, no error could be detected in motion judge’s ruling. Plaintiff’s arguments had been fully considered and nothing could usefully be added to further explain why their claims were bound to fail. Considering discretionary element in motion judge’s decision that leave to amend should not be granted second time, no error could be detected in that conclusion.
Committee for Monetary and Economic Reform v. R. (2016), 2016 CarswellNat 6635, 2016 FCA 312, Noël C.J., Near J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 3751, 2016 CarswellNat 381, 2016 FC 147, 2016 CF 147, James Russell J. (F.C.).

Civil Practice and Procedure

Costs

Security For Costs

Company demonstrated it was impecunious

In action for patent infringement defendant brought motion for order requiring plaintiff company to post security for costs. Judge found that company and individual plaintiff, majority shareholder of company, did not have assets that could be used to post security for costs, but that minority shareholder was employed, had some assets and was able to post security for costs. Company was ordered to post security for costs of $195,785.70. Plaintiffs appealed. Appeal allowed. Company did not have sufficient assets in Canada available to pay defendant’s costs if ordered to do so. Company, on its own, was impecunious, and majority shareholder was not able to provide financial assistance to company. In deciding whether company was impecunious it was appropriate to distinguish between shareholders who were manipulating company and those who were not. If company was controlled by one person or group of persons, then it was appropriate to consider financial resources of that person or group in determining whether company was impecunious. If person was minority shareholder and was not part of group controlling company, then circumstances related to that shareholder should be examined to consider whether it was appropriate to take into account his or her financial resources in determining whether company was impecunious. Important factor was percentage of shares held by person, and smaller percentage of shares held, less likely it was that financial resources should be considered in determining whether company was impecunious. Minority shareholder here owned 10 percent of shares, she never had been involved in business and was unwilling to post security for costs. Judge erred in law in considering whether minority shareholder could be sole source of amount that company would be required to post as security for costs. Company demonstrated it was impecunious for purpose of Rule 417 of Federal Court Rules.
Swist v. Meg Energy Corp. (2016), 2016 CarswellNat 6184, 2016 FCA 283, Wyman W. Webb J.A., D.G. Near J.A., and Donald J. Rennie J.A. (F.C.A.).

Civil Practice and Procedure

Costs

Security for costs

Defendant was prima facie entitled to security for costs

Plaintiff was serving life sentence for murde­­r and, in recent years, commenced 17 actions, applications and appeals against defendant Canada in various courts. These appeals arose from plaintiff’s action for damages and two applications for judicial review of grievance decisions. Plaintiff conceded he was indebted to defendant for unpaid costs, now totaling over $31,000. In light of outstanding costs and R. 416(1)(f) of Federal Court Rules, defendant was prima facie entitled to security for costs, and motions judge found accordingly. R. 417 provided poverty should not be bar to litigation, and security for costs should be denied when it would preclude impecunious plaintiff from advancing otherwise meritorious claim. Motions judge found plaintiff did not meet threshold of impecuniosity as he was able to pay court fees to commence numerous proceedings, and able to pay those litigation disbursements. Plaintiff brought appeal from three orders for security for costs made by motions judge. Appeal dismissed. Plaintiff filed financial documentation that showed he had limited financial means, and motions judge’s inference was questionable, as plaintiff’s ability to pay court fees and disbursements was not indicative of ability to pay much larger amount of costs. Motions judge made decision on basis of one factor rather than assessment of plaintiff’s overall financial situation. Plaintiff also had to establish impracticality of borrowing from third party with robust particularity and failed to discharge his onus. Plaintiff’s family members had helped in in past and affidavits filed were short on particulars to explain change in circumstances. There was no direct evidence plaintiff’s wife was ill and unable to work, medical evidence was not up to date, and there was no information on her financial resources or assets.
Mapara v. Canada (Attorney General) (2016), 2016 CarswellNat 6498, 2016 FCA 305, J.D. Denis Pelletier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).

Communications Law

Regulation of radio and television

Broadcasting licence

Broadcasting licences of aboriginal broadcaster were revoked

Canadian Radio-television and Telecommunications Commission (“CRTC”) revoked broadcasting licences of aboriginal broadcaster because of lack of financial viability. Broadcaster appealed from CRTC order. Appeal dismissed. CRTC adequately considered extent to which CRTC’s Native Radio Policy affected broadcaster. While acknowledging broadcaster had to act as not-for-profit organization under Policy, CRTC found broadcaster was not allocating sufficient resources to vital elements such as programming, sales and marketing. CRTC adequately considered broadcaster’s proposed business plan but found it did not contained type and level of detail necessary to establish viability. CRTC properly found broadcaster failed to report sufficient number of news stories of direct and particular relevance to aboriginal community. Doctrine of legitimate expectations could not act to fetter or restrict power conferred on CRTC to revoke broadcasting licence. Each radio station was found to be non-compliant with conditions of licence.
Aboriginal Voices Radio Inc. v. Canada (Attorney General) (2016), 2016 CarswellNat 5793, 2016 FCA 275, Eleanor R. Dawson J.A., D.G. Near J.A., and Judith M. Woods J.A. (F.C.A.).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Commission’s decision was not unreasonable

Complainant alleged that she had been subject to harassment and discrimination on basis of race, national or ethnic origin, and colour in course of her employment with respondent. Investigator concluded that harassment likely did not occur. Canadian Human Rights Commission dismissed complaint, finding that evidence before it did not support complainant’s allegations against her employer and that further inquiry was not warranted. Complainant’s application for judicial review was dismissed. Federal Court judge found that investigator adequately identified various allegations made by complainant and that evidence was insufficient to support them. Judge reviewed both investigator’s report and Commission’s decision, and determined that investigator did not deny complainant procedural fairness and that her allegations were without merit. Judge further found that Commission’s decision was not unreasonable in light of evidence gathered by investigator. Appeal by complainant dismissed. Judge made no reviewable error either in respect of procedural fairness issue or with regard to reasonableness of Commission’s decision. Investigator concluded that complainant had not provided any evidence to support her allegation that she had been treated in differential manner by her three supervisors; and similarly, that she did not provide any evidence to support allegation that she was not provided with harassment-free environment.
Miakanda-Batsika v. Bell Canada (2016), 2016 CarswellNat 5905, 2016 CarswellNat 5906, 2016 FCA 278, 2016 CAF 278, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 6482, 2014 CarswellNat 6483, 2014 FC 840, 2014 CF 840, George R. Locke J. (F.C.).

Environmental Law

Statutory protection of environment

Miscellaneous

Trial judge properly considered applicability of privilege

Parties were involved in proceedings under Environmental Protection Act, 1999. Informant in proceedings sought protection of identity under s. 16(2) of Act. At hearing regarding production, order issued which exempted from disclosure any information that might reasonably identify person who applied for investigation. Numbered company appealed. Appeal dismissed. Trial judge properly considered issue of applicability of privilege. Federal Court did not effectively read class privilege of s. 16 into scheme of s. 17 to 21 of Act. Person who believes that investigation should be initiated under s. 17 of Act may also require and request protections afforded by section 16.
876947 Ontario Ltd. v. Canada (Attorney General) (2016), 2016 CarswellNat 5708, 2016 FCA 270, 2016 FC 432, Eleanor R. Dawson J.A., Near J.A., and Woods J.A. (F.C.A.).


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