SELF-GOVERNMENT

Board’s reasons inadequate and not intelligible

Board denied application for membership in Nunatsiavut Government pursuant to Labrador Inuit Land Claims Agreement. Applicant sought declaratory relief restoring applicant’s rights as beneficiary of agreement. Respondent conceded applicant was not afforded opportunity to fully present case to board in appeal. Respondent stated there was evidence before court that was not before board that may have affected decision had applicant been given opportunity to present it. Application for judicial review was allowed. Matter was referred back to board to afford applicant opportunity to adduce all evidence. In addition to breach of procedural fairness, board’s reasons were inadequate and not intelligible.

Mugford v. Nunatsiavut (Oct. 20, 2011, F.C., Kelen J., File No. T-1407-10) 208 A.C.W.S. (3d) 634 (15 pp.).

JUDICIAL REVIEW

Single judge could dismiss application for delay if case was clear

Motion by respondents to dismiss application for judicial review on grounds of delay. Following death of a chiropractic patient, an inquest was held and jury reached verdict and made recommendations in 2004. Applicant association and college applied for judicial review but had not yet perfected applications. Applicants argued single judge lacked jurisdiction to dismiss application for delay and delay was justified by difficulty obtaining transcripts of inquest. Motion allowed. Case law established single judge could dismiss an application for delay if case was clear. Delay in this case was extremely significant and inordinate. While the applicants had some difficulty in obtaining transcripts, they had received all transcripts of proceedings before jury by 2007 and respondent’s counsel was very co-operative in helping them obtain evidence. By 2008, applicants were fully aware they would not be able to obtain transcripts of submissions made in absence of jury as there was no requirement for recording in such circumstances. From that point on, there was no reasonable explanation for the continued delay. Allowing the application to proceed after delay of this magnitude was prejudicial to family of deceased, parties to proceedings, treating chiropractor and public interest.

Canadian Chiropractic Assn. v. McLellan (Nov. 9, 2011, Ont. S.C.J. (Div. Ct.), Harvison Young J., File No. 606/04) 209 A.C.W.S. (3d) 551 (11 pp.).

COSTS

Risks of costs being awarded did not disappear when complainant decided not to defend tribunal’s determination

Canadian International Trade Tribunal made procurement determinations upholding, in part, complaints made by complainant pursuant to Canadian International Trade Tribunal Act. Complaints related to contracts issued to qualified bidders in process governed by Networking Equipment Support Services National Master Standing Offer which is means by which federal government departments may obtain computer networking equipment. Crown contended tribunal lacked jurisdiction to determine complaints because complainant did not submit bid. Tribunal found that no act of Public Works and Government Services Canada (“PWGSC”) in procurement process precluded complainant from submitting bid. Crown’s application for judicial review granted. Amount of costs awarded to Crown should not be reduced or limited because complainant did not oppose consolidated application. Crown not relieved of normal burden on applicant to produce record, prepare memorandum of fact and law, and appear at hearing to make submissions. Having initiated complaint proceedings, complainant bore risk that tribunal’s determinations might be successfully challenged and that Crown might be awarded costs. Risk did not disappear when complainant decided not to defend tribunal’s determination.

Enterasys Networks of Canada Ltd. v. Department of Public Works and Government Services (June 20, 2011, F.C.A., Blais C.J., Sharlow and Mainville JJ.A., File No. A-264-10; A-312-10; A-321-10) 204 A.C.W.S. (3d) 899 (18 pp.).

DOMESTIC CONTRACTS

Exchange of correspondence sufficient to indicate intention to be bound

Parties were not married. Applicant sought payment out of proceeds of sale of home parties lived in. Applicant purchased home with own funds. Title was put in joint names. Cohabitation in house was brief. Respondent claimed one-half share based on unjust enrichment. Costs were ordered against respondent for litigation misconduct. Respondent’s counsel proposed settlement. Applicant’s counsel counter-offered and respondent’s counsel conveyed draft agreement and statutory declaration in terms proposed by applicant. Respondent argued counsel did not have authority to accept offer. Applicant brought motion to dismiss all claims for failure to pay costs. Applicant sought summary judgment. Judgment was granted in terms of agreement that applicant pay respondent $6,000 in full satisfaction of any interest in home. Motion date plea of poverty lacked credibility by lateness and lack of support by evidence of real inability to work or reasonable effort to prioritize costs payment. Analysis of deprivation experienced showed little connection to purchase of home. Respondent showed no unjust enrichment to applicant against which to assert corresponding deprivation. Summary judgment was proper approach to claim for unjust enrichment and that ground for claim against home proceeds was dismissed. Summary judgment was granted on claim of gift. Presumption of resulting trust was not set aside and operated to hold that respondent held title in trust for applicant. There was binding settlement resulting arising from correspondence between counsel. Contract was formed. Exchange of correspondence sufficed to indicate intention to be bound. Payout provisions were about implementation and were not essential terms. Subject to payment according to terms of agreement applicant was entitled to proceeds of sale free and clear of any interest of respondent.

Oliver v. Racette (Oct. 5, 2011, Ont. S.C.J., Eberhard J., File No. FC 10-92) 208 A.C.W.S. (3d) 698 (12 pp.).

PRIVILEGE

Informer privilege did not apply to Canadian Security Intelligence Service human sources

This was appeal from Federal Court Judge’s decision ordering disclosure of documents that were allegedly sensitive and potentially injurious. Appeal allowed. Three-prong test to be applied was set out in R. v. Ribic (2003), 185 C.C.C. (3d) 129 (F.C.A.). Judge must first determine whether information sought to be disclosed was relevant to proceedings in which it was intended to be used. If information met relevancy test judge must determine whether disclosure of information would be injurious to international relations, national defence or national security. If judge was satisfied that disclosure of sensitive information would result in injury judge must determine whether public interest in disclosure outweighed public interest in non-disclosure. Informer privilege did not apply to Canadian Security Intelligence Service human sources, as that would be contrary to s. 38 of Canada Evidence Act and express will of Parliament. However, in applying Ribic test judge either discounted evidence of injury or did not give it weight it deserved. Judge committed palpable and overriding error and disclosure order was set aside.

Canada (Attorney General) v. Kalifah (June 13, 2011, F.C.A., Blais C.J., Letourneau and Trudel JJ.A., File No. A-428-10) 203 A.C.W.S. (3d) 771 (32 pp.).