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Charter of Rights

LIMITATION OF RIGHTS AND FREEDOMS

Automatic Roadside Prohibition regime violates s. 8 of Charter and not saved by s. 1

Petitioners challenged validity of provincial legislation providing for licence suspensions and monetary penalties for drivers who register “fail” or “warn” on roadside approved screening device (ASD) test. Automatic Roadside Prohibition (ARP) regime provided for 90-day suspension for drivers registering “fail” (over .08 blood-alcohol) and lesser penalties for “warn” (.05 to .08) result. Petitioners argued that ARP regime resulted in detention of drivers subject to ASD demands without access to counsel and authorized unreasonable searches. Petitioners also argued that ARP regime created offence while permitting no procedural protections and infringing presumption of innocence. Chambers judge found that ARP regime did not infringe s. 11(d) of Charter, but that ARP regime infringed s. 8 of Charter and violation was not saved by s. 1. Chambers judge also found that provisions were valid provincial legislation. Court of Appeal upheld ruling of Chambers judge. Appeal dismissed. Legislation did not create “offence” within meaning of s. 11(d). No true penal consequences can be imposed under regime. ARP regime was by its nature traffic safety regulation and not criminal law. Consequences of “fail” result to drivers were too severe in light of legislation’s lack of any mechanism by which drivers could challenge ASD results.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 112 W.C.B. (2d) 337 was affirmed.  126 W.C.B. (2d) 540.


Immigration

SELECTION AND ADMISSION

Officer improperly restricted her discretion by taking literal approach to hardship test

Appellant was Tamil from Sri Lanka. His family arranged for him to travel to Canada to live with uncle when he was 16. His claim for refugee protection was refused as was his application for pre-removal risk assessment. His application for humanitarian and compassionate relief under s. 25(1) of Immigration and Refugee Protection Act was rejected by officer who concluded she was not satisfied return to Sri Lanka would result in unusual and undeserved or disproportionate hardship. Federal Court found officer’s decision reasonable and Federal Court of Appeal agreed. Appellant’s appeal allowed. Minister has discretion to exempt foreign nationals from ordinary requirements of Act, pursuant to s. 25(1), if of the opinion that such relief justified by humanitarian and compassionate considerations, including best interests of child directly affected. Ministerial guidelines establish “assessment of hardship”. Specifically, s. 25(1) provides that applicants must demonstrate “unusual and undeserved” or “disproportionate” hardship. Guidelines are instructive but not determinative; they do not create thresholds for relief separate and apart from humanitarian purpose of s. 25(1). Officers should not fetter discretion by treating them as such, thereby limiting ability to consider and give weight to all relevant humanitarian and compassionate considerations. Best interests of child directly affected are singularly significant focus and perspective, given that s. 25(1) specifically directs that they be considered. Fact that appellant was child triggered best interests analysis but also should have influenced manner in which other circumstances were evaluated. Concept of unusual or undeserved hardship presumptively inapplicable in case of child applicant since children rarely, if ever, deserving of hardship. Officer failed to consider totality of appellant’s circumstances and took unduly narrow approach to assessment of hardship. She failed to give sufficient consideration to appellant’s youth, his mental health and evidence that he would suffer discrimination if returned to Sri Lanka. She improperly restricted her discretion by taking literal approach to hardship test, thereby rendering her decision unreasonable.
Kanthasamy v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Gascon J., Moldaver J., and Wagner J., File No. 35990) Decision at 239 A.C.W.S. (3d) 991 was reversed.  260 A.C.W.S. (3d) 344.

Criminal Law

Breathalyzer

Automatic Roadside Prohibition scheme not minimally impairing right of driver to be free of unreasonable search and seizure

Automatic Roadside Prohibition (ARP) scheme calling for roadside analysis of drivers’ breath samples using approved screening device (ASD). “Fail” reading and driver’s refusal to provide sample result in 90-day licence suspension. Process for review only permits Superintendent of Motor Vehicles to consider whether applicant was “driver” and whether ASD registered “fail”, “warn” or driver refused to provide sample. Drivers’ samples registered “fail” except G who refused to provide sample. Chambers judge found ARP scheme intra vires and that s. 11(d) of Canadian Charter of Rights and Freedoms not infringed but concluded ARP scheme violates s. 8 only where ASD registers “fail”. Court of Appeal upheld decision. Appeals dismissed. Pith and substance of ARP scheme is licensing of drivers, enhancement of traffic safety and deterrence of impaired driving. Provinces’ role of ensuring highway safety includes regulating who is able to drive. Provincial drunk driving programs do not invade federal power over criminal law merely because they target conduct also captured by Criminal Code. ARP scheme falling within provincial power over property and civil rights in province. ARP scheme does not create “offence” within meaning of Charter s. 11(d). Scheme concerns licensing drivers, enhancement of traffic safety and deterrence of impaired driving. Nor does scheme impose true penal consequences. While costs and penalties are significant and 90-day licence suspension is meaningful, they do not engage fair-trial rights. While demand to provide breath sample constitutes seizure that infringes individual’s reasonable expectation of privacy and engages s. 8, purpose and consequences of seizure are established by ARP scheme. Breath demand is critical component. While it has certain criminal-like features, consequences of “fail” reading or failure to provide sample are not criminal. Given concerns whether ASD accurately reflects blood-alcohol readings, driver’s ability to challenge accuracy of ASD result is critical to reasonableness of ARP regime. Absence of meaningful review of accuracy of result of seizure render ARP scheme unreasonable; ARP scheme not minimally impairing right of driver to be free of unreasonable search and seizure.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 237 A.C.W.S. (3d) 511 was affirmed.  259 A.C.W.S. (3d) 683.

Public Utilities

RATES

Utilities Commission did not have obligation to conduct analysis using particular methodology

ATCO Utilities applied to recover, in approved rates, certain pension costs related to annual cost of living adjustment. Alberta Utilities Commission denied approval for recovery of adjustment of 100 per cent of annual consumer price index, instead ruling that recovery of 50 per cent of annual consumer price index was reasonable. ATCO Utilities’ appeals to Alberta Court of Appeal and Supreme Court dismissed. Electric Utilities Act and Gas Utilities Act provide that regulated utility must have opportunity to recover costs and expenses so long as they are prudent. Commission tasked with determining whether utility’s costs are reasonable or prudent. Costs and expenses must be wise or sound to be considered reasonable or prudent. Public utilities bear burden of establishing that proposed tariffs are just and reasonable, which necessarily imposes on them burden of establishing that costs are prudent. Commission considers consumer interests by limiting utility’s recovery to what it reasonably or prudently costs to efficiently provide utility service. Consumers only pay for what is reasonably necessary. Commission does not have obligation to conduct analysis using particular methodology; it has discretion to consider variety of analytical tools and evidence so long as ultimate rates it sets are just and reasonable to both consumers and utility. Commission’s decision in applying its expertise to set rates and approve payment amounts is subject to standard of review of reasonableness. It was not unreasonable for Commission to decide, without applying no-hindsight analysis, that 50 per cent of consumer price index (up to maximum cost of living adjustment of three per cent) represented reasonable level for setting cost of living adjustment amount for purposes of determining pension cost amounts. Use of word “prudent” does not impose on Commission a specific no-hindsight methodology. Disallowed costs were forecast costs and it was therefore reasonable for Commission to direct ATCO Utilities to reduce pension costs incorporated into revenue requirements by restricting annual cost of living adjustment.
ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission) (Sep. 25, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Gascon J., File No. 35624) Decision at 233 A.C.W.S. (3d) 491 was affirmed.  257 A.C.W.S. (3d) 728.

Public Utilities

RATES

Given nature of labour costs, Board did not act unreasonably in not applying prudent investment test

Ontario Energy Board disallowed $145 million in labour compensation costs related to Ontario Power Generation’s nuclear operations applied for as part of rate application covering. Board found that labour costs out of step with comparable entities. Majority of Ontario Divisional Court dismissed OPG’s appeal and upheld Board’s decision. Ontario Court of Appeal set aside decisions of Divisional Court and Board and remitted matter to Board for redetermination. Board appealed. OPG argued that Board legally required to compensate it for all prudently committed or incurred costs, that prudence has particular methodological meaning and that OPG should benefit from presumption of prudence. Appeal allowed. It was not improper, in this case, for Board to participate in arguing in favour of reasonableness of its decision. Board was only respondent in initial review and it was exercising regulatory role by setting just and reasonable payment amounts to a utility. Utilities regulation must encourage investment in robust utility infrastructure and protect consumer interests. It would be inconsistent with statutory scheme to presume that utility decisions to incur costs were prudent. Ontario Energy Board Act, 1998 does not prescribe methodology Board must use to determine just and reasonable payment amounts and imposes on applicant utility the burden of establishing that payment amounts are just and reasonable. Board has broad discretion to determine methods it may use; Board not required to use no hindsight, presumption of prudence test. Regulator may make use of variety of analytical tools in assessing justness and reasonableness of utility’s proposed payment amounts. Statute requires only that regulator set “just and reasonable” payments. Impugned labour compensation costs were partly committed, since they resulted from collective agreements, and partly subject to management discretion, since OPG retained some flexibility to manage total staffing levels. Given nature of labour costs, Board did not act unreasonably in not applying prudent investment test. Board’s adoption of mixed approach that did not rely on quantifying exact share of compensation costs that fell into forecast and committed categories was proper exercise of Board’s methodological discretion where disputed costs did not fit easily into one category or the other.
Ontario (Energy Board) v. Ontario Power Generation Inc. (Sep. 25, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Gascon J., File No. 35506) Decision at 228 A.C.W.S. (3d) 1172 was reversed.  257 A.C.W.S. (3d) 252.

Building Liens

TRUST

Filing of lien bond has no effect on existence and application of trust remedy

Dominion Construction was hired by BBB as general contractor to construct new football stadium. Dominion entered into subcontract with Structal Heavy Steel for supply and installation of steel for project. Dominion started withholding payment from Structal, advising it was using unpaid amounts for back charges it claimed resulted from delays attributable to Structal. Structal registered builders’ lien against property. Dominion filed lien bond for full amount of builder’s lien. Structal approved bond and vacated its lien. Dominion refused to make further payments, maintaining that it had set-off against monies claimed by Structal, that there was no breach of trust, and that Structal was fully secured by lien bond. At Structal’s request, BBB withheld $3.5 million payment from Dominion. Dominion applied for declaration that it satisfied its Builders’ Lien Act, trust obligations to Structal. Application judge ruled that lien bond secured Structal’s trust claim, which was based on Dominion using BBB’s payment of $4.1 million on account of Structal’s completed and certified work to pay other contractors and itself. Structal paid its subcontractors in full from its own resources and its subcontract was certified for payment. Judge maintained that lien bond stood in place of lien, securing sum of money claimed by Structal and allowing Dominion to disburse funds of progress payment without being in breach of lien act trust provisions. Manitoba Court of Appeal overturned application judge’s decision. Dominion’s appeal dismissed. Right of lien against interest of owner of land or structure is available to persons who do any work, provide any services or supply materials in performance of contract or subcontract. Lien creates charge against land in favour of contractors, suppliers and workers who can prove their claim. Lien act provides for vacating liens, pending resolution of validity of lien claims, if alternate security, typically lien bond, is posted. Money or security paid into court stands in place of land against which lien was registered. Trust provisions of lien act provide that subcontractors to be paid before owner or contractor can appropriate trust funds for own use. Trust and lien provisions of lien act are two separate remedies. Act does not expressly delineate how lien and trust provisions are to interact where both remedies pursued concurrently. Filing of lien bond has no effect on existence and application of trust remedy. Lien bond does not constitute security for trust claim and does not result in protection of actual trust monies.
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel (Sep. 18, 2015, S.C.C., McLachlin C.J.C., Rothstein J., Cromwell J., Moldaver J., Wagner J., Gascon J., and Côté J., File No. 35777) Decision at 236 A.C.W.S. (3d) 823 was affirmed.  256 A.C.W.S. (3d) 776.

Conflict of Laws

FOREIGN JUDGMENTS

Ontario courts had jurisdiction to determine if foreign judgment should be recognized

As result of exploration and extraction activities of global oil companies, Ecuador suffered extensive environmental pollution. Plaintiffs, who represent approximately 30,000 indigenous Ecuadorian villagers, have been seeking legal accountability and financial and environmental reparation for alleged harms caused by Texaco’s former operations. Texaco later merged with Chevron, a U.S. corporation. Ecuadorian courts awarded environmental damages and punitive damages of US$9.51 billion against Chevron but Chevron refused to acknowledge or pay. Plaintiffs commenced action for recognition and enforcement of Ecuadorian judgment in Ontario Superior Court of Justice. Plaintiffs served Chevron at head office in California and Chevron Canada, at extra-provincially registered office in British Columbia and place of business in Ontario. Plaintiffs sought Canadian equivalent of award resulting from Ecuadorian judgment. Chevron and Chevron Canada applied for orders setting aside service ex juris, claiming that court did not have jurisdiction. Motion judge ruled in plaintiffs’ favour with respect to jurisdiction and Court of Appeal upheld finding that Ontario courts had jurisdiction to determine whether foreign judgment should be recognized and enforced in Ontario. Chevron’s appeal dismissed.
Chevron Corp. v. Yaiguaje (Sep. 4, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., File No. 35682) Decision at 235 A.C.W.S. (3d) 373 was affirmed.  256 A.C.W.S. (3d) 583.
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
Yes, this will remind trustees of the potential exposure of significant awards being made against them personally.
No, it’s unlikely this ruling will dissuade executors from engaging in unreasonable conduct during litigation.