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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

Class and representative proceedings

Common question in original order was restored

Plaintiff brought motion to certify as class proceeding action relating to denial of sickness benefits under Employment Insurance Act to individuals who were receiving parental benefits under Act when they became ill. Judge certified class proceeding for negligent implementation of Act in original order. Attorney General of Canada and Canada Employment Insurance Commission brought motion for reconsideration of original order. Motion was granted and amendments were made in amending order. Plaintiff appealed amendment in amending order that deleted common question that asked whether defendants who owed duty breached that duty of care. Appeal allowed. Common question in original order was restored. Certification judge certified question of whether Commission or Service Canada owed duty of care in administering Act and if so, content of duty and which defendant owed duty despite her statement that it would require individual assessment to determine who owed duty. It could not be said that manifest intention of certification judge was not to certify subject question related to whether Commission or Service Canada, who would have been found to have owed duty as result of earlier common questions, breached that duty. This common question was conditional, directly and indirectly, on other questions that had been certified. It was not clerical error or mistake to include this common question in original order.
McCrea v. Canada (Attorney General) (2016), 2016 CarswellNat 5814, 2016 FCA 285, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.).

Criminal Law

Extraordinary remedies

Application for judicial review was dismissed

Conviction review. Applicant was convicted of first degree murder, after son, son’s then-wife, and another witness testified that they saw applicant kill deceased. Applicant applied for conviction review on basis of son’s later confession that he murdered deceased. Criminal Conviction Review Group concluded on preliminary assessment that son’s confession was not reasonably capable of belief. Group, acting as delegate for Minister of Justice, found that there was no new and significant evidence providing reasonable basis to conclude that miscarriage of justice likely occurred and decided not to proceed to investigative stage of review process. In reconsideration decision after alleged inconsistencies were raised with respect to wife’s current recollection, Group refused to compel wife’s examination and cross-examination under oath. Applicant’s application for judicial review was dismissed. Applicant appealed. Appeal dismissed. Minister followed methodology appropriate to purposes of legislative framework during preliminary assessment phase, carefully considering information offered in support of application. Minister went further, interviewing wife as witness to crime but declining to investigate further or to examine her under oath. Minister had firm evidentiary basis for decision that confession was not reasonable basis for concluding miscarriage of justice likely occurred. At applicant’s trial, jury had cellblock confession by son to murder, supported by motive, but still found that applicant was murderer. Minister could not find independent corroborating evidence demonstrating that son committed murder, as opposed to making confessions Minister had acceptable and defensible basis for conclusion. Minister’s failure to disclose note detailing interview with wife did not work procedural fairness because it was not material and did not support need for further exploration of matter, as wife confirmed her earlier testimony that applicant committed killing. Legislative standards permitted Minister to take into account credibility of information, such as son’s confession, supporting application.
Winmill v. Canada (Minister of Justice) (2016), 2016 CarswellNat 5309, 2016 FCA 250, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2146, 2015 CarswellNat 6014, 2015 FC 710, 2015 CF 710, René LeBlanc J. (F.C.).


Administration and enforcement

Validity of tax assessments must be adjudicated by Tax Court of Canada

In 2011, Minister of National Revenue sent notice of assessment to individual for outstanding GST. In July 2015, CRA issued requirement to pay. In September 2015, individual claimed that he filed notice of objection. In October 2015, individual filed statement of claim under Simplified Action Rules of Federal Court seeking declaration that requirement to pay was null and void contrary to Indian Act, Treaty No. 8 and Constitution Act, and for damages for amounts seized pursuant to requirement to pay. Pursuant to judgment by Federal Court (FC), individual’s statement of claim was ordered struck without leave to amend on basis that claim disclosed no reasonable cause of action. Individual appealed. Appeal dismissed. In current case, FC held that essential character of individual’s claim was indirect challenge to validity of his 2011 tax reassessment. Such characterization did not amount to palpable and overriding error. Even though individual’s case was cast as damage claim, only damages sought flowed directly from tax re-assessment and sought reimbursement of monies paid in satisfaction of that re-assessment. Individual’s claim as pleaded was nothing but challenge to validity of tax re-assessment. Constitutional dimension of claim did nothing to alter this claim or to oust Tax Court of Canada’s (TCC) jurisdiction. Cases cited by individual confirmed that questions related to validity of tax assessments must be adjudicated by TCC irrespective of how claim is framed. Motions judge properly characterized claim as being indirect challenge to tax assessment. It was plain and obvious that TCC had exclusive jurisdiction over question.
Horseman v. Canada (2016), 2016 CarswellNat 5555, 2016 FCA 252, Gauthier J.A., Yves de Montigny J.A., and Gleason J.A. (F.C.A.).

Administrative Law


Decision to issue notice of compliance was reasonable

Reasonableness. Minister of Health made decision to issue notice of compliance (NOC) to TC Inc. for exemestane tablet, which was generic version marketed by PC Inc.. Minister of Health made decision to issue NOC to HH Inc. for its 100 mg/vial inflixmab powder solution, which was generic version marketed by J Inc. . PC Inc. brought application to challenge issuance of NOC. Federal judge found that standard of review of minister’s decision was correctness, that minister’s interpretation of regulations was incorrect and thus, decision to issue NOC was set aside. J Inc. also brought application to challenge issuance of NOC and on consent of parties, federal judge set aside decision to issue NOC. PC Inc. and J Inc. appealed and appeals were consolidated. Appeal allowed. Federal judge erred by reviewing minister’s decisions on standard of correctness. Applying standard of reasonableness, decision to issue NOC was reasonable. Contextual analysis did not rebut presumption of reasonableness. While regulations were enacted pursuant to Patent Act which fell under Ministry of Industry, not Health, this was too narrow of view of prevailing jurisprudence . Presumption of reasonableness applied when administrative decision-maker was interpreting not just its home statute, but also when decision-maker was interpreting “statutes closely connected to its function” which applied equally to regulations that were closely connected to function of Minister of Health.
Teva Canada Ltd. v. Pfizer Canada Inc. (2016), 2016 CarswellNat 5051, 2016 FCA 248, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.); reversed (2014), 2014 CarswellNat 5409, 2014 CarswellNat 7072, 2014 FC 1243, 2014 CF 1243, Mary J.L. Gleason J. (F.C.).


Statement of claim

Action was struck as disclosing no reasonable cause of action

Plaintiff D brought action in Federal Court, claiming right not to work while being afforded reasonable standard of living. Action was struck as disclosing no reasonable cause of action, with this finding being upheld on appeal. D appealed from Federal Court judgment. Appeal dismissed. D’s claim on appeal that she owned share of Consolidated Revenue Fund could not succeed. Previous claims were properly dismissed, as there was no basis in law for them.
Doell v. R. (2016), 2016 CarswellNat 4935, 2016 FCA 235, Gauthier J.A., David Stratas J.A., and Gleason J.A. (F.C.A.).

Civil Practice and Procedure

Class and representative proceedings

Motion for class proceeding certification was dismissed

Plaintiffs were chief and First Nations group, who were subject of treaties made between 1871 and 1921. Members of group received $5 yearly payment, from rate set in 1875. Plaintiffs claimed that lack of adjustment to yearly rate rendered payments meaningless. Plaintiffs moved to have action certified, to include other First Nations under treaties. Motion was dismissed, as Federal Court found there was no common issue. Plaintiffs appealed from dismissal of motion. Appeal dismissed. Federal Court identified proper issues and authorities. Court’s finding that plaintiffs sought relief beyond what was established in caselaw was proper. Different treaties were in place for proposed class members, so that common question was not established. Had scope of action been limited to one treaty, problem would have been avoided.
R. v. Horseman (2016), 2016 CarswellNat 4975, 2016 FCA 238, Johanne Gauthier J.A., David Stratas J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5461, 2015 CarswellNat 9094, 2015 FC 1149, 2015 CF 1149, Russel W. Zinn J. (F.C.).


Performance and breach

Appellant breached its level of service obligations

Respondent operated grain elevator facilities. Prior to construction of facilities parties entered into confidential contract. For several weeks respondent did not receive all of railcars that it ordered, and no car were delivered for six weeks to any of respondent’s facilities. Canadian Transportation Agency found appellant breached its level of service obligations to respondent for several weeks. Appellant appealed. Appeal dismissed. Agency did not err in its application of s. 113 to s. 116 of Canada Transportation Act. Agency did not err in concluding that appellant could not now complain that respondent’s orders were unreasonable because it agreed to supply number of cars ordered by respondent. Appellant was bound by agreement reached with respondent. Whether confidential contract was confidential contract for purposes of s. 113(4) of Act was not matter that could be appealed under Act. Agency’s interpretation of “Service Unit” as used in confidential contract was not extricable question of law and no appeal lay under Act from the Agency’s interpretation of term. There was no merit to respondent’s argument that it was denied procedural fairness.
Canadian National Railway v. Louis Dreyfus Commodities Canada Ltd. (Sep. 16, 2016, F.C.A., J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Yves de Montigny J.A., A-140-15) 270 A.C.W.S. (3d) 681.

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A Law Times column examines whether the Law Society of Upper Canada should change its name to the Law Society of Ontario, in light of different social changes, such as the Truth and Reconciliation Committee’s Calls to Action. Should LSUC change its name?
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