SELF-GOVERNMENT

Power to suspend respondent by resolution alone not supported by inherent power

Appellants appealed Federal Court’s decision allowing judicial review. Appellant First Nation Council decided to suspend respondent without pay from his office as councillor. Council did so upon hearing of sexual assault charge against respondent, which remained pending. Council also received complaints that respondent sent explicit text messages and photographs to victim of sexual assault and to another woman. Council expressed decision in resolution. Respondent applied for judicial review. Federal Court found that council’s resolution failed to include particulars of respondent’s conduct it relied upon in making decision as required by Election Code, that decision to suspend respondent as councillor was not supported by any ground set out in Code and it expressed concern that council did not act in procedurally fair manner. Federal Court set aside resolution and restored respondent to office of councillor pending outcome of criminal trial. Appeal dismissed. Applicable standard of review was reasonableness. Council’s power to suspend respondent by way of resolution alone was not supported by inherent power. Even if custom or inherent power existed, Code ousted it. Federal Court wrongfully narrowed meaning of words in s. 101.3.7 of Code. Potential breadth of wording “sufficiently serious to warrant cause in all the circumstances” could be given full effect by council. It was open to council to take view that, if established by evidence, respondent’s conduct could fall within s. 101.3.7 of Code. However, council did not have power to suspend respondent from office by passing resolution alone. In doing so, it reached outcome that was outside range of acceptable and defensible. Decision to suspend respondent as councillor by way of resolution alone was unreasonable. Decision was quashed.
Orr v. Fort McKay First Nation (Oct. 30, 2012, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-450-11) Decision at 209 A.C.W.S. (3d) 207 was affirmed.  225 A.C.W.S. (3d) 584.

INTERLOCUTORY RELIEF

Reductions in income assistance would cause harm to recipients

This was appeal of judge’s decision granting interlocutory injunction. Canada had provided essential services and programs to Indians residing on reserves. It decided to do away with reasonably comparable approach for income assistance program. There was now requirement of strict compliance with provincial eligibility criteria and assistance rates. Respondents took exception to change and sought relief by bringing application for judicial review. Respondents then applied for interim relief in form of order restraining Canada from changing reasonably comparable approach until final disposition of judicial review application. Injunction was granted that prohibited implementation of rule of strict compliance with provincial rates and standards for income assistance on First Nations reserves in Nova Scotia, New Brunswick and Prince Edward Island until decision was issued in underlying application for judicial review. Appeal dismissed. Deference was owed to judge’s decision. It had not been shown that judge proceeded on wrong principle of law, gave insufficient weight to relevant factors, and seriously misapprehended facts or that obvious injustice would otherwise result. In context of evolving law related to aboriginal consultation it was not unreasonable to suggest that there might be duty to hold meaningful consultation about merits of changing approach prior to its implementation. Judge did not err in finding respondents met low threshold of establishing serious issue to be tried. It was reasonable for judge to draw inference that reductions in income assistance would cause harm to individual recipients who could not be compensated through subsequent monetary award. Small changes in resources available to poor and vulnerable Canadians to meet basic essential needs could result in serious harm. Effect of order was to maintain status quo. Judge committed no error in finding that harm resulting from reduction in benefits to vulnerable individual recipients outweighed minor inconvenience Canada might suffer from delay in implementing changes.
Simon v. Canada (Attorney General) (Nov. 28, 2012, F.C.A., Marc Noël J.A., Robert M. Mainville J.A., and Wymann W. Webb J.A., File No. A-110-12) Decision at 216 A.C.W.S. (3d) 740 was affirmed. 225 A.C.W.S. (3d) 211.

MANDAMUS

Mandamus available to prevent further delay and harm to inmate

Court overturned Minister’s decision denying inmate, Canadian citizen in low security jail in United States transferred to serve sentence in Canada. Minister found inmate was at risk to commit criminal organization offence; court quashed the Minister’s refusal because in his reasons he did not demonstrate weighing of s. 10 of International Transfer of Offenders Act (Can.) factors, as he was required to do. Matter had been returned to Minister, who once again declined transfer; court found Minister paid lip service to appeal judgment, simply reasserted his earlier reasoning, was operating with closed, intransigent mind, and ordered Minister within 45 days to accept inmate’s transfer request and confirm in writing to inmate that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada. Court found Federal Court’s findings that Minister displayed closed mind and intransigency in his re-decision and paid lip service to court’s earlier decision were factual findings supportable on basis of record; only live issue was whether, as matter of law, it was open to Federal Court to make mandatory order, rather than sending matter back for another re-decision. Appeal dismissed with costs. Court did not accept Federal Court restrained as suggested by Minister. Federal Court found Minister’s conclusion that there was significant risk that inmate would commit criminal organization offence to be unsupported by evidence, and Crown did not contest this. With that factor off table, all that remained were factors supporting transfer. In circumstances, it was open to Federal Court to conclude on evidence that only lawful exercise of discretion was granting of transfer: in such circumstances, mandamus lies. In unusual circumstances of case, mandamus was also available to prevent further delay and harm that would be caused to inmate if Minister were given third chance to decide this matter in accordance with law. In circumstances where Minister did not follow court’s earlier decision, paid “lip service” to it, and displayed “closed mind” and “intransigency”. Federal Court’s exercise of discretion in favour of making mandatory order against Minister had foundation in evidentiary record.
Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 25, 2013, F.C.A., David Stratas J.A., Sharlow J.A., and Webb J.A., File No. A-39-13) Decision at 104 W.C.B. (2d) 769 was reversed in part.  105 W.C.B. (2d) 166.

INADMISSIBLE AND REMOVABLE CLASSES

Rehabilitation of claimant after committing crime irrelevant

This was appeal of dismissal of application for judicial review. Appellant was national of Albania. Greek court found that appellant fatally stabbed another Albanian while living in Greece during fight. Appellant was convicted and released. He could no longer live in Albania because killing provoked blood feud between his family and deceased’s family. Appellant came to Canada and claimed refugee protection. Delegate of respondent Minister refused to provide opinion that appellant was dangerous. Claim for refugee protection was not ineligible to be referred to the Refugee Protection Division (“RPD”). Minister of Public Safety and Emergency Preparedness (“MPSEP”) intervened. RPD rejected appellant’s claim for refugee protection on ground that he was excluded from definition of refugee by Article 1F(B) of United Nations Convention relating to the Status of Refugees. Application judge dismissed application for judicial review. Appeal dismissed. Claimant’s dangerousness was not relevant to determination of whether claim was excluded from refugee definition by Article 1F(b). Fact that respondent declined to provide opinion that appellant was danger to public in Canada did not estop MPSEP from intervening before RPD to argue for exclusion. Issues at eligibility and exclusion stages were different. MPSEP did not unreasonably exercise discretion to intervene. Rehabilitation of claimant after committing crime and current dangerousness were irrelevant at exclusion stage. Appellant’s crime was presumptively serious because if he had been found guilty in Canada of equivalent crime of manslaughter, he could have been sentenced to maximum of at least ten years’ imprisonment. RPD’s overall conclusion on material before it that there were serious reasons for considering that appellant committed serious crime was not unreasonable.
Feimi v. Canada (Minister of Citizenship and Immigration) (Dec. 7, 2012, F.C.A., Evans, Sharlow and Stratas JJ.A., File No. A-90-12) Decision at 216 A.C.W.S. (3d) 989 was affirmed. 223 A.C.W.S. (3d) 851.

STAY OF PROCEEDINGS

No basis to conclude that claims could not be determined by arbitration

Appellant appealed Federal Court Judge’s decision staying action. Appellant was a small business owner registered as independent business owner under umbrella of respondent. Appellant signed registration agreement that included arbitration agreement where parties agreed to submit any possible claims to arbitration. Appellant commenced proceedings in Federal Court of Canada pursuant to s. 36 of Competition Act (Can.) (“CA”). Appellant began proposed class action against respondent claiming that business practices were in violation of ss. 52, 55 and 55.1 of CA. Respondent filed motion to dismiss or stay action and to compel arbitration. Judge first determined that substantive issue raised by motion had to be determined by Federal Court and not by arbitrator. Federal Court Judge concluded that arbitration agreement was applicable, enforceable and served to bar initiation of class proceeding for any amount exceeding $1,000. Appellants class proceeding was stayed. Appeal dismissed. Appeal from judge’s decision lay to Federal Court of Appeal. By incorporating the Arbitration Act, 1991 (Ont.), into their bargain parties could not oust Federal Court of Appeal’s jurisdiction found in s. 27(2) of Federal Courts Act (Can.). Private claim for damages brought under s. 36 of CA was arbitrable. Supreme Court of Canada made it clear that express legislative language was required before courts would refuse to give effect to terms of arbitration agreement. CA did not contain language that would indicate that Parliament intended that arbitration clauses were to be restricted or prohibited. There was no basis to conclude that claims brought under s. 36 of CA could not be determined by arbitration. Appellant’s claim under s. 36 of CA must be sent to arbitration as parties intended when they entered into arbitration agreement.
Rhodes v. Cie Amway Corp. (Feb. 14, 2013, F.C.A., Nadon, Gauthier and Trudel JJ.A., File No. A-487-11) 223 A.C.W.S. (3d) 770.

RATES

Federal court erred in law by applying correctness standard instead of reasonableness

This was appeal of decision quashing order-in-council. Railway company and coal company entered into confidential transportation contract with respect to transportation of coal that included fuel surcharge from published tariff. Railway company gave notice to customers that it would be reducing fuel surcharge in accordance with new tariff but it refused to apply new tariff to coal company’s contract. Coal company made application to Canadian Transportation Agency for order establishing reasonable fuel surcharge. Railway company successfully brought motion for order dismissing application on basis that agency lacked jurisdiction. At request of coal company’s trade association, governor-in-council issued order-in-council rescinding agency’s decision. Railway company applied for judicial review of order-in-council. Federal Court applied standard of review of correctness. Application for judicial review was granted and order-in-council was quashed. Appeal allowed. Federal Court judge correctly characterized trade association’s petition to be request that agency review tariff for reasonableness without regard to confidential conflict. Judge correctly characterized nature of governor-in-council’s decision. Effect of governor-in-council’s decision was to impugn agency’s factual determination that coal company’s application sought order requiring new fuel surcharge rates to apply to confidential contract for carriage of its traffic by railway company. Governor-in-council substituted its view of nature of coal company’s application for that of agency. In governor-in-council’s view, coal company’s application was for benefit of all shippers. Agency incorrectly framed issue before it. Characterization by governor-in-council of nature of coal company’s application to agency was question of fact or question of mixed fact and law with factual component being predominant. Decision was to be reviewed on standard of reasonableness. Federal court erred in law by applying correctness standard. Applying reasonableness standard of review to decision of governor-in-council, decision was reasonable. There was basis upon which governor-in-Council could reasonably conclude that coal company’s application was for benefit of all shippers subject to alleged charge. Decision was supported by evidence and by reasons and it fell within range of outcomes that were defensible in respect of facts and law. Federal Court Judge erred by entering into interpretive exercise of agency’s home statute.
Canadian National Railway v. Canada (Attorney General) (Nov. 2, 2012, F.C.A., Dawson, Gauthier and Stratas JJ.A., File No. A-438-11; A-440-11) Decision at 208 A.C.W.S. (3d) 210 was affirmed. 223 A.C.W.S. (3d) 247.

PATENTS

Product specificity requirement set high threshold of consistency

This was appeal of dismissal of application for judicial review. Appellant filed new drug submission (“NDS”) seeking approval of drug for treatment of HIV infection. Appellant submitted patent for listing on patent register. Issue was whether patent was eligible for listing on patent register in respect of NDS where medicinal ingredients claimed in patent did not match up with those in NDS. Respondent Minister refused to list patent on patent register as it did not meet requirements of s. 4(2)(b) of Patented Medicines (Notice of Compliance) Regulations (Can.). Appellant applied for judicial review. Judge dismissed application. Appeal dismissed. Claims at issue in patent were for new combination of medicinal ingredients so eligibility of patent for listing depended on requirements of s. 4(2)(a) of Regulations, not s. 4(2)(b). Relevant claims in patent did not meet requirements of s. 4(2)(a), as they lacked strict product specificity with respect to three medicinal ingredients listed in NDS. Both Minister and judge failed to give sufficient weight to requirement that formulations contained non-medicinal ingredients. Definition of formulation in Regulations was clear and must contain both medicinal and non-medicinal ingredients. Patent failed under s. 4(2)(a), as relevant claims consisted of chemically stable combinations of medicinal ingredients. Product specificity requirement set high threshold of consistency. Medicinal ingredients must be set out in patent claims and NOC for patent to be eligible on register. Patent claims failed requirement for product specificity under s. 4(2)(a), as they did not make specific reference to medicinal ingredient but only to broad class of compounds.
Gilead Sciences Canada Inc. v. Canada (Minister of Health) (Oct. 9, 2012, F.C.A., Trudel, Sharlow and Mainville JJ.A., File No. A-44-12) Decision at 214 A.C.W.S. (3d) 940, 101 C.P.R. (4th) 240 was reversed. 222 A.C.W.S. (3d) 500.