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Category Archives: Administrative

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Too Soon to Say Too Late? Reviewing a Tribunal’s decision to hear a late-filed complaint

Posted in Administrative, Case Comments

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

A Supreme Cabinet of Appeal for Economic Tribunals?

Posted in Administrative, Case Comments, Transportation

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.

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Correctness is “Fashionable”, But in a Bad Way: SCC broadens scope for administrative tribunals and securities commissions

Posted in Administrative, Case Comments, Securities

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.

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Withholding its assessment: the Federal Court of Appeal clarifies the narrow limits on judicial review in the tax context

Posted in Administrative, Civil Litigation, Constitutional

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.”

Background

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

NSCA Considers First-Ever Ministerial Order Vesting a Mining Company with Title to Private Land

Posted in Administrative, Case Comments, Construction and Real Estate, Municipal

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

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Attribution of Knowledge: Does it depend on the identity of the victim?

Posted in Administrative, Bankruptcy and Debt, Corporate Law

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.

Background

This appeal was brought with leave by Jetivia S.A. and Urs Brunchschweiler from an Order of the Chancellor of

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Federal Court of Appeal affirms that the Federal Court has limited jurisdiction over the province of Alberta

Posted in Administrative, Case Comments, Conflict of Laws, Constitutional, Procedure

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.

Background

The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which

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What will Justice Nadon’s appointment bring to the Supreme Court?

Posted in Aboriginal, Administrative, Charter of Rights, Class Actions, Competition, Intellectual Property, Tax

Background

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. 

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When is a Decision Final?

Posted in Administrative, Bankruptcy and Debt, Case Comments, Procedure

Introduction

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.

Background

The appellant, Régies des rentes du Québec (“Régie”), is a government agency responsible for applying Quebec’s Supplemental Pension Continue Reading

Government Cannot Withhold a Hidden Agenda in its Dealing with the Courts

Posted in Administrative, Case Comments, Procedure, Tax

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”)[1], the

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Don’t Mess with Texas – The Supreme Court of the United States Reaffirms Deference to Administrative Tribunals

Posted in Administrative, Case Comments, Procedure

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.

Background

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

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A Little Less Above the Law? Crown Immunity in Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd.

Posted in Administrative, Case Comments, Manufacturing, Regulatory

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

A Fair Fight: Issue Estoppel and Parallel Proceedings

Posted in Administrative, Case Comments

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

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Different but Hopefully Equal? Federal and Provincial Employment Standards to be Considered by the Supreme Court

Posted in Administrative, Case Previews, Labour and Employment

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

The UK and Canadian Supreme Courts to Consider the Legal Status of Equity Partners

Posted in Administrative, Case Comments, Labour and Employment, Professions

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.

Background

The majority of multi-lawyer law firms in the United Kingdom, … Continue Reading

Click Here to Win a Million Dollars!: The Australian High Court Considers Whether Online Intermediaries are Liable for Displaying Misleading or Deceiving Advertisements

Posted in Administrative, Case Comments, Communications, Competition

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

What’s in a Name? Ontario Pharmacies Fight to Substitute Brand-Name Drugs with Private-Label Equivalents

Posted in Administrative, Case Previews

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

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Securities Commissions and the “Public Interest” at the SCC: Court to Rule on Inter-Provincial Reciprocal Orders and Limitation Periods

Posted in Administrative, Case Comments, Procedure, Securities

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

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Infringing via the Unspoken: Marlboro Appeal Increases Scope of Confusion for Trade-marks Infringement

Posted in Administrative, Case Comments, Intellectual Property

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.

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Can the Queen Be Taken at Her Word? Federal Court of Appeal Answers in Canada v. South Yukon Forest Corporation

Posted in Administrative, Case Comments, Construction and Real Estate, Contracts, Energy, Torts

The Federal Court of Appeal has clarified when the federal Crown will be held responsible for representations made by its officers. In issuing its decision, the Court opted for a narrow interpretation of the Crown’s liability and reiterated that parties that rely on the Crown’s representations have the responsibility to conduct their own due diligence.

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Dunsmuir and the Demise of Deference – or – why Ministers just can’t get no respect

Posted in Administrative, Case Comments

Background

In a judgment illustrating how the Dunsmuir analysis is to be applied to ministerial decisions, Mainville J.A. for the unanimous Federal Court of Appeal (the “FCA”) ruled that a Minister is not entitled to the same level of deference as an administrative tribunal when interpreting their ‘home’ statute(s). This decision arises out of an appeal brought by the Minister of Fisheries and Oceans (the “Minister”) of the Judgment of Justice Russell of the Federal Court (the “FC”) in 2010 FC 1233, in which Russell J. found the Minister’s discretion does not “‘legally protect’ critical habitat under s. 58

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B.C. Court of Appeal Considers Extraterritorial Reach of Securities Act

Posted in Administrative, Case Comments, Constitutional, Securities

In an interesting new judgment - Torudag - the British Columbia Court of Appeal has held that the B.C. Securities Commission may assert regulatory jurisdiction over residents of other provinces, who engage in insider trading through a stock exchange in Ontario.  The Torudag Court arrived at this conclusion despite extraterritoriality arguments about the constitutional applicability of the B.C. Securities Act.

The Decision

The Torudag case arose on appeal from a preliminary decision of the B.C. Securities Commission.  In that decision, the Commission found that it possessed jurisdiction to consider whether the appellant violated the insider trading provisions then in force

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Regulating the Regulator – Pembina intervenes after the fact

Posted in Administrative, Case Comments, Energy

In a decision providing ammunition for public interest groups denied an opportunity to intervene before a regulator, the Alberta Court of Appeal denied leave to Pembina on the issue of whether the Alberta Utilities Commission made various errors in approving a power plant.

This blog entry, however, will address only the fact that Pembina was granted standing before the Court of Appeal, despite not having intervened in this matter before the Commission.

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FCA to Review Discretion to Decline Band Members Retroactive Tax Relief

Posted in Aboriginal, Administrative, Case Previews, Tax

On September 1, the Attorney General of Canada appealed the finding of the Federal Court in Abraham v. Canada, that the Minister of National Revenue had erred in denying members of the Sagkeeng Band tax relief on wages earned while working in a mill located on former reserve lands.

The Band members had contended that relief was due because of the surrounding circumstances surrounding the sale of the reserve land. In 1926, the Band received an offer to sell part of their Reserve land for the purposes of building a mill. The Band initially rejected the offer, saying that … Continue Reading