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Civil Procedure


Applicant failed to demonstrate reviewable error

Applicant gave birth in Ontario during period of time chosen by Statistics Canada for study linking birth records to census data. Privacy Commissioner dismissed applicant’s complaint under Privacy Act (Can.) that birth records were used without her consent. Applicant brought application for judicial review. Respondent Director-General for Statistics Canada research centres (D-G) filed two affidavits stating applicant’s records were not used in study and that names were removed after linkage, minimizing any intrusion. Applicant brought unsuccessful motion to, among other things, have adverse inference drawn from D-G’s affidavit. Motions judge determined that adverse inferences pursuant to R. 81(2) of Federal Courts Rules (Can.) were not intended for inconsistencies or reliance on third-party evidence, that D-G’s role put her in position to know facts sworn were true, that D-G did provide some evidence of persons having personal knowledge, that affidavit was not clearly imprecise or plagued by inconsistencies, and that matter was best left for application judge. Applicant appealed. Appeal dismissed. Applicant failed to demonstrate reviewable error in motions judge’s refusal to compel D-G to testify. As for applicant’s request that adverse inference be drawn from fact that D-G’s affidavits were based on information and belief, judge determined admissibility of affidavits by conducting admissibility analysis based on personal knowledge of D-G and in so doing, committed no error. Motions judge correctly determined that D-G, by virtue of government responsibilities, was in position to depose to matters in question without necessarily having personal knowledge and that whether adverse inference should be drawn from otherwise admissible evidence was matter better left for application judge.
O’Grady v. Canada (Attorney General) (Sep. 6, 2016, F.C.A., Trudel J.A., Near J.A., and Donald J. Rennie J.A., A-21-16) Decision at 263 A.C.W.S. (3d) 31 was affirmed. 270 A.C.W.S. (3d) 648.



Judge erred in concluding that taxpayers resigned as directors

Taxpayers G and C were former directors of company whose affairs and business was managed and operated by their husbands. In 2001, taxpayers had resignations prepared but never signed them. In 2008, Minister of National Revenue assessed taxpayers for source deductions that company failed to remit from 2000 to 2005, pursuant to s. 227.1 of Income Tax Act (Act) (Can.). Tax Court judge allowed taxpayers’ appeals. Judge held that there were valid and effective resignations by each of taxpayers, given preparation of draft letters and verbal communication of resignation to husbands. In alternative, judge found that C had reasonable belief she had resigned and exercised due diligence. Minister appealed. Appeals allowed. Judge erred in concluding that taxpayers resigned as directors. In absence of communication of written resignation to company, resignation was not effective. Two-year limitation period in s. 227.1(4) of Act was triggered by date of resignation, requiring objective verification of status of directors. In finding that C exercised due diligence, judge committed error on extricable question of law. Director’s belief that she had resigned had no correspondence to underlying purposes of s. 121(2) of Business Corporations Act (Ont.) and its emphasis on objectively verifiable communication of resignation to company. To allow subjective intention would undermine corporate governance.
Chriss v. R. (Sep. 22, 2016, F.C.A., David Stratas J.A., D.G. Near J.A., and Donald J. Rennie J.A., A-137-15, A-138-15) Decision at 244 A.C.W.S. (3d) 493 was reversed. 270 A.C.W.S. (3d) 440.

Aboriginal Peoples


Band’s appeal under the Canadian Environmental Assessment Act, 2012 was dismissed

National Energy Board was engaged in review of pipeline project. Aboriginal band was intervenor in proceedings. Project was found to be ready to proceed to assessment, was found to be designated project to be assessed under Canadian Environmental Assessment Act, 2012, and order put in place for assessment. Report was issued stating that project should go forward on conditions, and further round of consultation was to take place. Band claimed that board had duty to consult aboriginal persons which was not met, that board had duty under s. 18 of Act to collaborate with band as jurisdiction, that duty of fairness was breached and that consideration of marine shipping activities was improperly not considered. Band appealed orders regarding assessment. Appeal dismissed. Questions regarding duty to consult had not been raised at hearing and it was improper to deal with them on appeal. Issues could have been raised at trial and would also be addressed by governor in council. Much of evidence before court had not been before Board. Hearing order was not final and was subject to amendment. Band had opportunity to respond to completeness decision which other intervenors had used, while band did not follow proper procedure. Board made offer to consult with all parties considered jurisdictions, and band failed to provide material to make jurisdictional determination. Position that board had duty to consult was not raised until midway through proceedings. Putting issue before board would not have delayed matter. Premature for Crown to address issues when consultation was ongoing and governor in council had not made determination.
Tsleil-Wautuh Nation v. National Energy Board (Sep. 6, 2016, F.C.A., Johanne Gauthier J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A., A-386-14) 270 A.C.W.S. (3d) 226.

Administrative Law

Judicial review

Canadian Transportation Agency fettered its discretion

Appellant filed complaint with Canadian Transportation Agency (“Agency”) alleging that practices of respondent relating to transportation of large persons were discriminatory, contrary to Air Transportation Regulations (Ont.) and contrary to prevision decision of Agency. Appellant relied on email from respondent to passenger. Appellant filed submissions regarding his standing to bring complaint and respondent responded. Agency dismissed complaint of discriminatory practices filed by appellant against respondent on preliminary basis that he lacked standing to bring complaint. Appellant appealed under Canada Transportation Act. Appeal allowed. Decision was unreasonable. Agency fettered its discretion. Agency erred in superimposing jurisprudence with respect to standing on regulatory scheme, thereby ignoring wording of Act and its purpose and intent. Fact that complainant was not directly affected by fare, rate, charge, or term or condition complained of and may not even meet requirements of public standing, was not to be determinative. If objective was to ensure that air carriers provided their services free from unreasonable or unduly discriminatory practices, one should not have to wait until having been subjected to such practices before being allowed to file complaint. There was no sound reason to limit standing under Act to those with direct, personal interest in matter.
Lukács v. Canadian Transportation Agency (Sep. 7, 2016, F.C.A., Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-135-15) 270 A.C.W.S. (3d) 63.

Aboriginal Peoples


Judge held that s. 39 of Federal Courts Act (Can.) did not infringe treaty rights

Plaintiff S Band and plaintiff E Band were treaty First Nations who surrendered their mineral interests in reserve to Federal Crown. Oil produced from reserve was subject to price restrictions and export tax from 1973 to 1985, as per oil price program created by Oil Export Tax Act (Can.) and Petroleum Administration Act (Can.). S Band brought action in 1989 and E Band brought action in 1992 on basis that Crown breached fiduciary and treaty duties as result of oil price program’s application to reserve. Actions were divided into six phases, including “tax” or “Regulated Price Regime” issue. Federal Court judge granted Crown’s motions for summary judgment dismissing both actions relating to Regulated Price Regime issue as being time-barred. Judge held that limitations legislation was applicable to claims against Crown even where rights were constitutionally-protected treaty and Aboriginal rights. Judge found that claims were based upon Crown’s breach of sui generis fiduciary or trust-like obligations requiring Crown to exempt Bands from indirect impact of oil price program upon their royalty entitlement, which were subject to limitations defence. Judge found that Bands did not bring actions until well beyond applicable six-year period within discovery of cause of action under s. 4(1)(e) of Limitations of Actions Act (Alta.) (LAA). Judge held that s. 39 of Federal Courts Act (Can.) (FCA) did not infringe treaty rights, as honour of Crown did not require that damages claim for breach of fiduciary duty be exempted from limitations defence. Bands appealed. Appeals dismissed. Judge did not err in determining that issues were suitable for summary judgment, that s. 39 of FCA and s. 4(1)(e) of LAA were constitutionally applicable, and that claims were not for property held on express trust. Judge did not err in finding that entirety of S Band’s claims in this phase were barred by application of s. 4(1)(e) of LAA.
Ermineskin Indian Band v. Canada (Sep. 8, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., A-325-16, A-326-15) Decision at 255 A.C.W.S. (3d) 1037 was affirmed. 270 A.C.W.S. (3d) 216.

Constitutional Law

Charter of Rights

Assessment tools administered to Aboriginal inmates breached ss. 7 and 15 of Charter

Defendant Correctional Service of Canada (CSC) used certain psychological tests or assessment tools to assess risk of criminal recidivism and psychopathy in inmates, which impacted institutional decisions such as those relating to parole eligibility and security classifications. Plaintiff Aboriginal inmate brought action against CSC and wardens of institutions, alleging that assessment tools were unreliable when administered to Aboriginal inmates such that their use breached his rights, including under ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Action was allowed on basis that CSC’s use of assessment tools breached s. 7 of Charter and s. 24(1) of Corrections and Conditional Release Act (Can.), with issuance of interim relief while remedy hearing was set to determine terms of final order. Defendants appealed. Appeal allowed. Trial judge did not expressly consider whether plaintiff established on balance of probabilities that scores and conclusions generated by assessment tools were inaccurate and unreliable when assessment tools were administered to Aboriginal persons. Trial judge relied on expert testimony that there was no evidence that scores and conclusions predicted recidivism in Aboriginal offenders as accurately as they did when administered to non-Aboriginal offenders. By relying on absence of evidence proving reliability of assessment tools, trial judge erred in law by failing to require plaintiff to establish his claim on balance of probabilities. Expert evidence was, as matter of law, insufficient to establish that assessment tools generated results that were inaccurate or unreliable in material way. Trial judge erred by failing to conclude that plaintiff failed to establish violation of his rights under s. 7 of Charter on balance of probabilities.
Canada (Commissioner of Correctional Service) v. Ewert (Aug. 3, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., A-421-15) Decision at 258 A.C.W.S. (3d) 320 was reversed. 269 A.C.W.S. (3d) 686.

Civil Procedure


Plaintiff’s acceptance of defendants’ offer was unconditional

Plaintiff sued defendants with respect to trademark issues arising from use of word Pinnacle in connection with sale of alcoholic beverages. Defendants made offer to settle pursuant to which claim and counterclaim in Federal Court action would be discontinued with each party to bear its own costs. Offer was accepted but dispute arose as to whether offer also included discontinuance of Superior Court action. Each party brought motion seeking to have its position ratified. Federal Court judge concluded that there was settlement of Federal Court action and counterclaim but that Superior Court action was not settled. Permanent stay of proceedings was ordered with respect to defendants’ counterclaim. Defendants appealed. Appeal dismissed. Federal Court judge did not make any error that could justify intervention. Arguments resting on notion that defendants intended to make offer to settle which included Superior Court action could not succeed. Words of offer to settle were unambiguous while evidence of surrounding circumstances including operation of R. 420 of Federal Courts Rules (Can.), did not support defendants’ position. Defendants’ settlement offer was intended to satisfy conditions of R. 420 and as result it dealt only with Federal Court action. Plaintiff’s acceptance of defendants’ offer was unconditional.
Beam Suntory Inc. v. Domaines Pinnacle Inc. (Aug. 31, 2016, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A., A-272-15) Decision at 254 A.C.W.S. (3d) 802 was affirmed. 269 A.C.W.S. (3d) 662.

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