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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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Customs and Excise


Classification decision of Canadian International Trade Tribunal should be restored

Respondent importer sought to import hockey gloves. Canada Border Services Agency classified these items as “(g)loves, mittens (or) mitts” under tariff item No. 62.16 and not item No. 39.26, which applies to various types of sporting equipment. Canadian International Trade Tribunal (CITT) upheld determination. CITT found goods met terms of heading No. 62.16 and that presence of plastic components did not deprive them of their character as gloves of textile fabric. CITT found dual classification was not applicable. Importer brought application for judicial review. Federal court of appeal held that determination did not meet standard of reasonableness. It held that goods had dual nature and CITT had not properly applied relevant rule. Court of appeal referred matter back to CITT. Crown appealed. Appeal allowed. Court of appeal misapprehended structure of General Rules of Customs Tariff (Can.). It did not appreciate conjunctive nature of application of R. 1 and R. 2 to determination of headings under which good is prima facie classifiable. Rules 1 and 2 are not mutually exclusive classification rules. Rule 1 simply provides that classification must be done according to headings and relevant section and chapter notes. Rule 2 deems that certain references in headings include unfinished goods or goods composed of different materials. Where R. 2 applies, it informs content of headings by which R. 1 directs that appropriate classification is to be determined. CITT’s decision is reasonable if its reasons “allow reviewing court to understand why tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”. Further, court of appeal erred in supposing that R. 2(b) can be applied to extend scope of heading to include particular good where no part of that good falls within heading. Good must be described in whole or in part by heading, even if it may ultimately not be classified under that heading because of its unfinished or composite nature, before R. 2 can be applied. This is consistent with process of reasoning applied by CITT to this case, and reasonableness of its decision is unassailable on this basis. CITT’s decision classifying gloves under heading 62.16 was reasonable. CITT neither misapplied General Rules, nor interpreted heading 39.26 and its Explanatory Note in unreasonable manner. Classification decision of CITT should be restored.
Canada (Attorney General) v. Igloo Vikski Inc. (Sep. 29, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36258) Decision at 246 A.C.W.S. (3d) 594 was reversed. 270 A.C.W.S. (3d) 306.



Standard of review for interpretation of standard form contracts was correctness

Window cleaners improperly cleaning building windows, causing scratches and necessitating replacement of windows. Building owner and general contract entitled to claim cost of replacing windows against builders’ risk insurance policy. Trial judge finding insurers liable, determining that exclusion clause for “cost of making good faulty workmanship” applied against insurers. Court of Appeal reversing trial judge’s decision. Standard of review applicable to interpretation of standard form contracts was correctness.
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. (Sep. 15, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36452) Decision at 251 A.C.W.S. (3d) 490 was reversed. 269 A.C.W.S. (3d) 753.


Assistance programmes

Quebec farm producers were not entitled to additional compensation 

Quebec farm producers contested decisions made by public body that administered program designed to protect them from income fluctuations. Producers particularly challenged calculation method chosen by public body. Producers argued program was contract of insurance and had to be interpreted on basis of their reasonable expectations as insured persons. Trial judge allowed their action, characterizing program as contract of insurance and ordering public body to pay them substantial additional compensation. Court of Appeal set aside that judgment, finding that program was not contract of insurance and that impugned decisions were reasonable. Producers appealed to Supreme Court of Canada. Appeal dismissed. Program in question could not be considered simply government program that was governed by public law. It had several features that justified considering it to be contract. However, program was not contract of insurance but simply innominate contract under the civil law. It could not be subject to rule of interpretation based on reasonable expectations of insured that applied to contract of insurance as defined in Civil Code of Québec. For purpose of determining compensation payable to its participants, program gave public body discretion to determine how to calculate any other income they have received from government sources. Public body exercised that discretion in accordance with requirements of good faith and contractual fairness. Therefore, producers were not entitled to amounts they claim. 

Ferme Vi-Ber inc. c. Financière agricole du Québec (July 29, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Wagner J., Gascon J., and Côté J., 36205) Decision at 251 A.C.W.S. (3d) 370 was affirmed. 268 A.C.W.S. (3d) 9. 



Dispute had sufficient connection to contract made in Ontario

Class action was certified in Ontario on behalf of terminated dealerships by defendant GMCL as result of financial crisis and auto bailout in summer of 2009 as well as against Cassels Brock, who acted as counsel for Canadian Automobile Dealers Assn., for failing to provide appropriate legal advice regarding Winding-Down Agreements (agreements) presented by GMCL. It was found that agreements were sufficiently connected with tortious claim against out of province lawyers to raise presumption of real and substantial connection between subject matter and Ontario and Ontario was most appropriate and convenient forum. Challenge to Ontario’s jurisdiction was dismissed. Quebec law firms appealed to Supreme Court of Canada. Appeal dismissed. Dispute had sufficient connection to contract made in Ontario. Local lawyers’ provision of legal advice brought them within scope of contractual relationship between GMCL and dealers.
Lapointe Rosenstein Mar­chand Melançon LLP v. Cassels Brock & Blackwell LLP (July 15, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Wagner J., Gascon J., and Côté J., 36087) Decision at 242 A.C.W.S. (3d) 88 was affirmed. 267 A.C.W.S. (3d) 340.


Wrongful dismissal

Labour Code provisions offered statutory alternative to common law of dismissal

Employee was dismissed without cause after four-and-one-half years’ employment, and given six months’ pay. Employee brought successful unjust dismissal complaint under s. 240 of Canada Labour Code. Adjudicator found that, as matter of statutory interpretation, Code only permitted dismissals for just cause. Employer brought successful application for judicial review. Employee’s appeal to Federal Court of Appeal was dismissed. Employee appealed. Appeal allowed. Standard of review was reasonableness, and issue was whether adjudicator’s interpretation of ss. 240 to 246 of Code was reasonable. Purpose of statutory scheme was to ensure that non-unionized federal employees would be entitled to protection from being dismissed without cause under Part III of Code. Provisions offered statutory alternative to common law of dismissals, and to align protection from unjust dismissal for non-unionized federal employees with those available to unionized employees. If employer could dismiss without cause under Code by providing severance pay, no role would exist for plurality of remedies available to adjudicator.
Wilson v. Atomic Energy of Canada Ltd. (July 14, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36354) Decision at 249 A.C.W.S. (3d) 347 was reversed. 267 A.C.W.S. (3d) 349.



Notice of reserve pursuant to Cities and Towns Act (Que.) and Expropriation Act (Que.) was ultra vires province

Pursuant to his powers under Radiocommunication Act (Can.), minister of industry authorized R Inc. to install antenna system on certain property in respondent municipality for purpose of improving its cellular telephone network. Municipality, arguing that health and well-being of people living near such installation would be at risk, adopted municipal resolution authorizing service of notice of establishment of reserve (notice of reserve) that prohibited all construction on property in issue for two years pursuant to Cities and Towns Act (Que.) and Expropriation Act (Que.). Few days before notice was due to lapse, it was renewed for two additional years. R Inc. filed motion to contest notice. Motion judge annulled notice of reserve and its renewal, as well as resolutions on which they were based. Appeal from motion judge’s decision was allowed. R Inc. appealed. Appeal allowed. In light of purpose and effects of notice of reserve, its pith and substance was siting of radiocommunication antenna system, which represented exercise of federal jurisdiction. Notice was ultra vires province. In circumstances, notice impaired core of federal power over radiocommunication in that it compromised orderly development and efficient operation of radiocommunication in Canada. In addition, it was inapplicable to R Inc. by reason of doctrine of interjurisdictional immunity.
Rogers Communications Inc. c. Châteauguay (Ville) (Jun. 16, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36027) Decision at 242 A.C.W.S. (3d) 342 was reversed. 266 A.C.W.S. (3d) 390.

Sexual Offences


Bestiality has well-established legal meaning

Accused put peanut butter on minor complainant’s genitals and took photos while dog licked it off. Accused was convicted of bestiality. Court of Appeal concluded penetration is essential element of bestiality and overturned conviction. Crown appealed to Supreme Court of Canada. Appeal dismissed. Bestiality has well-established legal meaning and refers to sexual intercourse between human and animal. Penetration has always been understood to be essential element of bestiality. Parliament adopted term without adding definition of it. Legislative history and evolution of relevant provisions showed no intent to depart from well-understood legal meaning of term. Courts should not, by development of common law, broaden scope of liability for offence as trial judge did. Any expansion of criminal liability for bestiality was within Parliament’s domain.
R. v. W. (D.L.) (Jun. 9, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Côté J., and Brown J., 36450) Decision at 122 W.C.B. (2d) 508 was affirmed. 129 W.C.B. (2d) 514.

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