It was widely hoped that the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”) would simplify the judicial review of administrative action by limiting the scope of review to two standards: reasonableness and correctness. The divided Supreme Court of Canada opinion in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 shows that there is still a long way to go before coherence and uniformity is brought to this area of law.… Continue Reading
In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.… Continue Reading
The majority decision (Stratas and Nadon, J.A.) of the Federal Court of Appeal (“FCA”) in Paradis Honey Ltd. v. Canada, 2015 FCA 89 calls for a complete overhaul of the law governing public authority liability. In a surprising obiter, the Court expressed its view that the well-known analytical framework used for negligence is an anomaly when applied to public authorities, and that the last decades of case law using private law tools to solve public law problems should be revisited. The case can be seen as an open invitation for the Supreme Court of Canada to grant leave … Continue Reading
The Supreme Court of Canada’s recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (“Saguenay”) is undoubtedly of interest to all Canadians with respect to the Court’s conclusion ordering a municipality and its mayor to cease the recitation of a prayer at city council meetings, on the basis that it breached the state’s duty of neutrality and was thus a discriminatory interference with an individual’s freedom of conscience and religion.… Continue Reading
In its recent decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal held that the rule of law can require the Court to apply a correctness standard of review to administrative decisions concerning the interpretation of the governing statute in certain cases, such as where adjudicators have long held conflicting interpretations of a particular provision.
Acknowledging that a labour adjudicator’s interpretation of a labour statute would be typically subject to a reasonableness review, the Court held that, where adjudicators have disagreed on a point of statutory interpretation for many years, the … Continue Reading
This month the British Columbia Court of Appeal provided guidance on two administrative law questions, one procedural and one substantive. The Court weighed in on when it is appropriate to review a preliminary decision of a tribunal before the hearing on the merits, and confirmed that where the tribunal decides to hear a late-filed complaint, it is not open to the reviewing judge to reweigh the evidence. In Mzite v. British Columbia (Ministry of Public Safety and Solicitor General), the Court of Appeal upheld the decision of the lower court judge to review the Human Rights Tribunal’s decision to … Continue Reading
The Supreme Court of Canada has released a much anticipated administrative law decision interpreting the scope of Cabinet’s powers to overrule tribunals. In Canadian National Railway Co. v. Canada (Attorney General), the Supreme Court clarified that reasonableness review applies to Ministerial decisions made pursuant to a “cluster” of economic regulatory statutes, including the Canada Transportation Act, S.C. 1996, c. 10. These economic statutes empower the Governor in Council to vary or rescind decisions of the tribunals administering the legislation, requiring reviewing courts to employ deference even on issues of law.
The Supreme Court of Canada has released what may be the most important administrative law appeal of the year in McLean v. British Columbia (Securities Commission), reaffirming the deference that administrative tribunals are owed when interpreting their “home” or closely related statutes and expressly seeking – as always, it seems – to foster greater “predictability and clarity”. The case represents the Court’s first return to inter-provincial securities regulation issues since the Reference re. Securities Act, 2011 SCC 66.
… Continue Reading
The Federal Court of Appeal has issued its decision in The Minister of National Revenue and Canada Revenue Agency v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250. The case concerns the scope of administrative law remedies and the essence of an administrative “decision.”
The case arose out of a “withholding tax” assessment by the Minister of National Revenue of JP Morgan (Canada) Inc. (“JP Morgan”) for fees paid by JP Morgan to a private Hong Kong corporation, its client. JP Morgan challenged the assessment by applying to the Federal Court for judicial review. The Crown moved … Continue Reading
The Nova Scotia Court of Appeal recently addressed what the government must do to ensure a fair process takes place before making an order transferring private land to a mining company. In Higgins v Nova Scotia (Attorney General), 2013 NSCA 106, the Court considered the first vesting order made by the Minister of Natural Resources (the Minister) pursuant to the Mineral Resources Act, SNS 1990, c 18 (MRA) in Nova Scotia.
The Court found that the Minister must only provide an affected owner with the chance to make submissions prior to divesting him of title… Continue Reading
In Jetivia SA & Anor v Bilta (UK) Ltd & Ors, the England and Wales Court of Appeal confirmed and clarified the circumstances in which a director’s knowledge of fraudulent conduct will be attributed to the company. In particular, it explained that a director’s knowledge will not be attributable to the company in the context of a claim made by the company against the director and its associates who engaged in unlawful conduct with negative consequences to the company.
This appeal was brought with leave by Jetivia S.A. and Urs Brunchschweiler from an Order of the Chancellor of… Continue Reading
Generally speaking, the Federal Court does not have jurisdiction over the provincial Crown. Confusion arises when the subject matter of a claim is within the realm of the Federal Court and the claim is an in personam. The recent Federal Court of Appeal decision of Canada v. Toney, 2013 FCA 217 affirms that there remain limited instances where the Federal Court has jurisdiction over a province, even if other factors suggest that a claim would be properly put before the Federal Court.
The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which… Continue Reading
Earlier this week, the Prime Minister surprised many Supreme Court-watchers by nominating the Honourable Marc Nadon to replace Justice Fish at the Supreme Court of Canada. Given this recent appointment, the Canadian Appeals Monitor has taken a look at Nadon J.’s jurisprudential legacy to date and identified key cases which illustrate his judicial leanings, especially as it applies to Canadian businesses and professions. The Canadian Appeals Monitor has also looked at some of the cases that Nadon has argued to get better insights into what kind of judge he is likely to be in the Supreme Court.
It is now easier for Parliament to enact legislation to override judicial decisions that it does not like. The Supreme Court has held that declaratory legislation –i.e. legislation that “clarifies” already existing legislation– can apply retroactively and can circumvent the binding directives of an appellate court. In Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, the majority of the Supreme Court has begun to water down the principles of res judicata.
The appellant, Régies des rentes du Québec (“Régie”), is a government agency responsible for applying Quebec’s Supplemental Pension … Continue Reading
A case recently decided by the Federal Court of Appeal reiterates the very high standard of good faith to which the Minister of National Revenue (the “Minister”) must be held when dealing with the courts in the context of an ex parte application provided by the Income Tax Act (“ITA”). For example, the Minister cannot ignore and omit to mention internal evidence which it knows weakens its position, or hide ulterior motives.
Context: Third-Party Information Concerning “10-8” Plans
In Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 (“RBC Life”), the… Continue Reading
In City of Arlington, Texas v. Federal Communications Commission, 569 U.S. (2013), the unanimous Supreme Court of the United States clarified the limits of judicial deference to administrative tribunals’ decisions. In doing so, it reaffirmed a conceptual rift between Canadian and American jurisprudence on the issue.
At issue in Arlington was the provision of the Telecommunications Act of 1996 in which Congress required state and local governments to act on wireless “siting applications within a reasonable period of time after the request is duly filed”. “Siting applications” are applications by telecommunications networks to place towers and antennae… Continue Reading
Citing the “modern legislative trend” towards “putting the Crown on an equal footing with everyone else”, the Ontario Court of Appeal recently overturned an application judge’s granting of legal immunity to a Crown agent. The Appellate Court held that Atomic Energy of Canada Ltd. (“AECL”), a federal Crown corporation and Crown agent, is not immune from the application of s. 60 of the Ontario Evidence Act (“OEA”) which authorizes the enforcement in Ontario of a letter of request from a foreign court. The Court further held that in this particular case, “justice required” that the letter of request be enforced.… Continue Reading
Litigation has to be fair to both sides of a dispute. Finality is an important aspect of that fairness. Where parallel proceedings have differences in process, procedure, or purpose, is it fair to allow the same parties to litigate the same issues? Or does the fairness of finality take precedence over considerations of process and purpose?
In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court of Canada considered when a civil court should bar claims on the basis that the issues in dispute were finally disposed of in a prior administrative proceeding. A 4-3… Continue Reading
The Supreme Court of Canada has granted leave in an appeal about whether provincial or federal legislation governs workplace compensation for federal workers. If the decision of the Court of Appeal in Martin v. Alberta (Workers’ Compensation Board), 2012 ABCA 248 is upheld, federal workers may find that their claims for accident-related compensation will be determined by provincial standards rather than solely the provisions of the federal Government Employees Compensation Act. … Continue Reading
Can equity partners at professional firms take advantage of statutory employment law protections? Both the UK and Canadian Supreme Courts have recently granted leave in cases which consider that question. In the UK, Clyde & Co LLP v Bates Van Winkelhof concerns a whistle blower claim, money laundering in Tanzania, and allegations of sexual discrimination. In Canada, Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal) is, in typical Canadian fashion, far less exciting. It concerns the application of a national full service law firm’s mandatory retirement policy.
The majority of multi-lawyer law firms in the United Kingdom, … Continue Reading
Online advertising is big business. It is estimated that $92 billion was spent worldwide last year, and forecasters expect that number to reach $143 billion by 2017. But to what extent are the distributers of online advertisements responsible for their content? That was the question considered by the Australian High Court in Google Inc v Australian Competition and Consumer Commission. In a decision that is sure to have implications in Canada, the High Court decided that Google is not relevantly different from traditional advertisement intermediaries such as newspaper publishers or broadcasters and is therefore not responsible for misleading or … Continue Reading
The Supreme Court of Canada has granted leave to appeal in a case that pits retail pharmacy chains in Ontario against the provincial government in a battle over generic drug reform. At the heart of this appeal is whether Ontario can lawfully prohibit pharmacies from selling private–label generic drugs by regulation, rather than by statute. Put another way, must the provincial government obtain the approval of the Legislature in order to prohibit the sale of certain drugs in Ontario? Engaging diverse issues at the intersection of health care policy and public finance, the outcome of this appeal could affect the… Continue Reading
The Supreme Court of Canada agreed earlier this summer to hear the appeal in Patricia McLean v. Executive Director of the British Columbia Securities Commission, an interesting case that raises several legal issues relevant to provincial securities commissions and the extra-provincial reach of securities litigation. With the Court’s decision last week to dismiss the leave application in Torudag, McLean provides the Court with a unique opportunity to opine on extra-provincial issues in the securities regulation context. The specific issues in McLean deal with the scope of the “public interest” power of securities commissions as it relates to out-of-province… Continue Reading
In an eagerly anticipated decision, the Federal Court of Appeal has allowed in part Imperial Tobacco’s unique infringement lawsuit against Philip Morris in the Marlboro Canada Ltd. v. Philip Morris Products S.A. decision. This lawsuit involved the first cigarette package in the world that bore no brand name, with the plaintiff claiming instead that the visual appearance and idea of the package evoked its registered trade-mark MARLBORO. This theory has now won out on appeal, and may increase the ability of registered trade-mark owners to target competitors evoking the idea of their brands without actually employing the key marks.