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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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International Law

Sovereign immunity

Presumptive immunity for foreign states from jurisdiction of Canadian courts under State Immunity Act (Can.)

Creditor obtained arbitral award against State of Eritrea, with respect to contract for sale of military equipment. Canadian company S Corp. operated mine in state in joint venture with Australian company that it wanted to buy out. On ex parte motion, creditor registered arbitral award, exceeding $4 million at that point, in court for purposes of enforcement. Pursuant to state’s regulatory conditions, S Corp. through Eritrean branch office entered into joint venture with state through its alter ego E Co. to operate mine through joint venture mining company A Co. of which S Corp. owned 60 per cent while E Co. held remaining 40 per cent. On ex parte motion, creditor obtained provisional order of garnishment against S Corp. to garnish “debts” of exploration licence fees paid to states and of shares A Co. issued to E Co.. Creditor’s motion for final order of garnishment against S Corp. was granted. S Corp. appealed. Appeal allowed. There was presumptive immunity for foreign states from jurisdiction of Canadian courts under State Immunity Act (Can.). Only payments that were properly categorized as payments related to commercial activity could be seized. Exploration licence fees were exempt from seizure because they were quintessentially regulatory obligations imposed by sovereign state on those who carry on business within its reach, such that they did not relate to “commercial activity” for purposes of Act. State imposed licence requirement for purpose of asserting national control over businesses such as mining activities within its territory and fees were inextricably bound up with licences themselves. Licence fees also raised taxes for use by state’s government.
Sunridge Gold Corp. v. Delizia Ltd. (Apr. 8, 2016, F.C., Henry S. Brown J., T-1157-13) Decision at 248 A.C.W.S. (3d) 98 was reversed. 265 A.C.W.S. (3d) 645.


Administrative Law

Jurisdiction

Request to set aside non-binding finding of Privacy Commissioner not justiciable matter

Protocol was developed by RCMP and Department of Justice (DOJ) establishing process by which personal medical information of RCMP members could be disclosed to DOJ under s. 8(2)(d) of Privacy Act (Can.) for use in legal proceedings involving Crown. RCMP had been self-insured and therefore acquired much more personal medical information about members and their families than would otherwise be case. RCMP member was concerned about privacy implications of protocol and made complaint to Privacy Commissioner. Privacy Commissioner found that as long as two criteria found in Act were met, RCMP was authorized to disclose personal information without consent. RCMP member brought application for judicial review of Privacy Commissioner’s decision. Application dismissed. RCMP member’s request to set aside non-binding finding of Privacy Commissioner was not justiciable matter. Under s. 18(1)(a) of Federal Courts Act (Can.), court had exclusive jurisdiction to grant declaratory relief against any federal board, commission or other tribunal. There was no question that Privacy Commissioner exercised powers under federal legislation and was therefore federal board or commission. There was no trouble in holding that finding was act or proceeding under s. 18.1(3)(b). Finding did not rise to level of triggering legal rights enabling RCMP member to bring application for judicial review. Proposition of RCMP member that he was entitled to standing because he was party by virtue of his initiating complaint to Privacy Commissioner was not accepted. Had there been justiciable issue, RCMP member would have had standing to bring application as he was directly affected by finding as complainant.
Sauve v. Canada (Attorney General) (Apr. 11, 2016, F.C., E. Susan Elliott J., T-2584-14) 265 A.C.W.S. (3d) 556.


Harbours

GENERAL

Regulatory scheme applicable to marine transportation security has low standard and based on assessing possibilities

Applicant was longshore worker whose marine transportation security clearance was cancelled. Transport Canada received Law Enforcement Record Check from RCMP that indicated applicant had no known criminal convictions, but had been seen shaking hands with member of Hell’s Angels, was arrested for aggravated assault after leaving scene of fight but not charged, was identified as passenger of vehicle with member of Hell’s Angels, was arrested but not charged with threatening to shoot up bar and displayed violent behaviour to police, was arrested but not charged with mischief and was suspected of being on drugs at time, and was with known criminals in latter two incidents. Transport Canada advised applicant of concerns and applicant responded by explaining he was not affiliated with Hell’s Angels and only shook hand of man he had previously met to be polite, was helping cousin who was being beaten, did not recall being stopped while passenger in vehicle, bar incident arose from misunderstanding, and mischief incident occurred when he was intoxicated and fell into window. Minister accepted Advisory Board’s recommendations that applicant’s response did not dispel its concerns about his judgment, trustworthiness and reliability, and cancelled his security clearance. Application for judicial review. Application dismissed. Minister’s reasons were terse and would have benefitted from more comprehensive analysis of applicant’s submissions, but applicant’s real complaint was weight Minister gave to his submissions and its preference for LERC report. Regulatory scheme was intended to screen out candidates who presented unacceptably high security risk, and standard was low and based on assessing possibilities. Minister would rely on wide range of information, and it did not have to be reliable and verifiable to standard required for conviction. Cumulative effect of incidents identified in LERC report was more than sufficient to raise serious concerns about applicant’s judgment, trustworthiness and reliability. While applicant had no criminal record, this was not benchmark required to justify Minister’s decision, and applicant did not respond to concerns he was associating with known criminals. LERC report was considered reliable and Minister’s decision entitled to deference.
Sidhu v. Canada (Minister of Transport) (Jan. 8, 2016, F.C., Simon Fothergill J., T-2257-14) 265 A.C.W.S. (3d) 179.


Industrial and Intellectual Property

Patents

Prothonotary’s conclusion that strong possibility of infringement was present could not be characterized as an error

Defendant brought motion to appeal order of prothonotary in which she declined to strike out plaintiffs’ statement of claim in its entirety. Statement of claim alleged infringement of patent. Although prothonotary struck some of plaintiffs’ pleadings, she allowed action to continue on basis of amended allegations of likely future infringement. Defendant contended that aspect of decision was made in error and that action should be dismissed in its entirety. Motion dismissed. Defendant had declared clear intention to come to market with its competing version of plaintiffs’ product as soon as it could obtain notice of compliance. That could occur if court invalidated patent following impeachment trial. Prothonotary drew inference that defendant’s abbreviated new drug submission had been approved by Minister and was on patent hold. That inference was unassailable. Conclusion that strong possibility of infringement was present could not be characterized as error, let alone palpable and overriding error.
Gilead Sciences, Inc. v. Teva Canada Ltd. (Mar. 21, 2016, F.C., R.L. Barnes J., T-1888-15) 264 A.C.W.S. (3d) 1015.


Constitutional Law

Charter of Rights

Claims of economic “think tank” against Crown disclosed no reasonable cause of action

Plaintiff Committee for Monetary and Economic Reform (COMER) was economic “think tank” and individual plaintiffs were members of COMER. Amended statement of claim sought declarations relating to assertions that Bank of Canada Act (BCA) provided for interest-free loans to governments for purposes of “human capital expenditures,” and defendants failed to fulfill their legal duties to ensure such loans were made, resulting in lower human capital expenditures by governments to detriment of all Canadians. Plaintiffs asserted that these harms were result of Canadian fiscal and monetary policy. Plaintiff sought declaration that taxes imposed to pay for interest on deficit and debt to private bankers were illegal and unconstitutional. Plaintiffs asserted defendants breached Constitution Act, 1867 (Can.) and s. 3 of Canadian Charter of Rights and Freedoms. Plaintiffs sought damages. Defendants brought motion to strike amended statement of claim. Motion granted. It was plain and obvious that claims disclosed no reasonable cause of action and had no reasonable prospect of success. Taxation issues raised were not justiciable. No constitutional principle was breached or principle of taxation without representation. No facts were pleaded to support allegation that MPs were voting blind and were hoodwinked by Minister of Finance. There was nothing in facts as pleaded in amended claim to suggest that Parliament was not fully aware of criticisms levelled by plaintiffs against Minister of Finance and that parliamentarians were not free to question and debate any budget presented from perspective of those criticisms. Plaintiffs were attacking Parliamentary process and jurisprudence was clear that court could not interfere with way Parliament went about its business. COMER as unincorporated association had no electoral rights. There were no material facts in amended claim that linked impugned legislative scheme embodied in BCA to effect on plaintiffs. Plaintiffs were asking court for advisory opinion in form of declarations that their view of way BCA and Constitution should be read was correct. Court was not to declare law generally or to give advisory opinion, but was to decide and declare contested legal rights.
Committee for Monetary and Economic Reform (COMER) v. R. (Feb. 8, 2016, F.C., James Russell J., T-2010-11) 264 A.C.W.S. (3d) 381.


Administrative Law

Remedies

Application to compel processing of permanent residence applications under federal skilled workers class was dismissed

Applicants’ applications for permanent residence under foreign skilled workers (FSW) class were terminated by s. 87.4 of Immigration and Refugee Protection Act (Can.), which eliminated backlog of FSW applications by cancelling those made prior to specified date where no selection decision was made before set date. Protocol was prepared under lead case to promote expediency and better organize litigation. Applicants brought application to compel respondent to process applicants’ permanent residence applications under FSW class. Application dismissed. There was no basis on which court could order mandamus based on Protocol alone. Applicants had no vested rights to enforce. Protocol clearly contemplated that disposition of their applicants might not be possible. Protocol said nothing specific about what was to happen if law applicable to applicants’ FSW applications changed before they could be dealt with. Undertaking to be “guided by” decisions in representative cases did not include promise to process applications even if they were validly terminated by Parliament. Section 87.4(2) did not exempt applicants from s. 87.4(1). Applications were terminated by operation of law and court could not order mandamus. Protocol was not final determination of application and it contemplated possible disposition of remaining cases. There was nothing to suggest that Bill C-38 or Jobs, Growth and Long-term Prosperity Act (Can.) were not enacted in accordance with normal legislative procedures and safeguards. Doctrine of legitimate expectations did not arise. Language of s. 87.4 clearly displaced any legitimate expectation that applications would be processed to completion. Protocol contemplated that it might not be possible to process applications to completion. Public policy considerations were not humanitarian and compassionate considerations and court was in no position to second guess or order minister to do anything on basis of public policy. Applicants’ arguments with respect to breach of constitutional rights were already dealt with. Applicants’ constitutional and judicial independence arguments were masking their real arguments, which were that, in deciding these mandamus applications, court was to ignore impact of s. 87.4. Much of what applicants alleged as abuse of process was no more than assertion that protocol should prevail over s. 87.4, humanitarian and compassionate factors should have been applied to avoid impact of s. 87.4 in their FSW applications, and that overall result was simply unfair to them.
Gong v. Canada (Minister of Citizenship and Immigration) (Feb. 29, 2016, F.C., James Russell J., IMM-6828-12, IMM-1-13) 264 A.C.W.S. (3d) 471.


Evidence

Opinion evidence

First Nations granted leave to file expert report and call expert as witness

First Nations commenced action against federal government in 1992 for relief for breach of fiduciary duty in making certain treaties in 1923. Federal government commenced third-party claim against provincial government. Parties engaged in negotiations until 2000. First Nations hired expert S to interview First Nations’ members to assist in identifying potential witnesses. Expert S interviewed 174 members of First Nations and began drafting expert report on First Nations’ oral history of treaties based on these interviews. Report was not completed, and First Nations indicated in 2007 that they would not rely on it. Expert passed away in 2012. Trial commenced some weeks later. First Nations’ oral history of events became relevant in 2013 when anomalies were discovered in original treaties. First Nations hired expert M to prepare expert report based on expert S’s work. First Nations brought motion for leave to file expert M’s report and to call him as expert witness. Motion granted on terms. Comprehensive order was made regarding conduct of trial, including how expert M’s evidence was to be addressed. First Nations’ oral narratives recorded by expert S and analysed by expert M constituted both oral history evidence and hearsay evidence on treaties. Expert M was anthropologist who could be expected to provide expert evidence in his field of expertise. Interviews might be hearsay, but expert M’s report was not. Expert M’s report was relevant and necessary. Preliminary findings about admissibility were not findings of fact, which were made only when evidence was complete at end of trial. Since expert S engaged in research using academically accepted approach, and since expert M was available for cross-examination, reliability and trustworthiness of expert S’s work could be assessed through expert M’s expert testimony. Some First Nation interviewees would be available to testify and be cross-examined. In addition, federal and provincial governments identified archival oral history recordings that were also available for comparison. Various mitigative measures would adequately address much prejudice arising from late filing of expert M’s report.
Alderville Indian Band v. R. (Jul. 28, 2015, F.C., Leonard S. Mandamin J., T-195-92) 264 A.C.W.S. (3d) 1.


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