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.

TOBACCO TAX

Provincial authority could not provide exemption from federal duties

This was appeal of dismissal of appeals of assessments made under Excise Act, 2001 (Can.) (“EA”). Appellant was corporation that manufactured and sold tobacco products at its principal place of business located on First Nations reserve. Appellant held manufacturer’s licence for purposes of EA and must pay duty. From Sept. 2005 to July 2007, appellant did not pay duty under EA on manufactured tobacco products it sold to retailers located on reserves in Ontario. Appellant claimed that unmarked cigarettes under meaning of Tobacco Tax Act (Ont.), and which may only be sold to Indians on reserves in Ontario were not packaged for sale to general public under meaning of s. 2(b) of Stamping and Marking of Tobacco Products Regulations (Can.), and were exempt from tobacco duties under EA. Appellant appealed assessments made under EA. Appeals were dismissed. Tax court judge concluded that duty on appellant’s tobacco products became payable pursuant to s. 42(1)(a) of EA when products were packaged for sale to Indians. Appeal dismissed. Textual, contextual and purposive interpretation to applicable legislative and regulatory provisions led to conclusion that cigarettes and other tobacco products manufactured in Canada and packaged for eventual sale on Indian reserves were subject to duty on tobacco set out in EA. Purpose and intent of s. 42(1)(a) of EA, read with s. 2(b) of Regulations, was to impose duty on tobacco products, which was payable by tobacco manufacturer at time products were packaged in smallest package in which they were normally offered for sale to general public. EA did not provide for exemption from duties on tobacco products destined for sale on Indian reserves or to Indians. There was no inconsistency between expression “general public” in s. 2(b) of Regulations and marketing and sale of tobacco products to Indians on reserves. EA did not exempt manufacturers from paying duty on tobacco products when products were sold on reserve to Indians. There was no reason to find that sales of tobacco products made on reserves to Indians were not sales to general public. Indians were general public for which appellant was authorized to manufacture cigarettes. Provincial authority could not provide exemption from federal duties.
Grand River Enterprises Six Nations Ltd. v. Canada (Sep. 19, 2012, F.C.A., Mainville, Sharlow and Trudel JJ.A., File No. A-495-11) Decision at 213 A.C.W.S. (3d) 227 was affirmed. 222 A.C.W.S. (3d) 278.

Overbroad claim of confidentiality was wrong at law

This was appeal of dismissal of application for judicial review. Appellant was lawyer and represented or advised persons in conjunction with immigration proceedings or applications. Citizenship and Immigration Canada (“CIC”) decided that appellant was not “authorized representative” as defined in s. 2 of Immigration and Refugee Protection Regulations (Can.). Result was that appellant was no longer able to provide services to his clients. Appellant made request for access to information under Privacy Act (Can.). CIC refused appellant’s request based on third-party information and solicitor-client exemptions found in ss. 26 and 27 of Act. Appellant applied for judicial review. Applications judge held that CIC correctly found that withheld information fell within ss. 26 and 27 of Act and that discretionary decision not to disclose exempt material was reasonable. Applications judge dismissed judicial review application. Appeal allowed. Contents of confidential record were problematic because it contained non-confidential information and submissions. Overbroad claim of confidentiality was wrong at law. Proceedings of Canadian courts were open and accessible to public. Fairness required that party know case to be met. CIC failed to provide evidentiary basis that was sufficient to permit appellate court or Federal Court to properly review decision to withhold access to personal information from appellant. Decisions of administrative decision-makers must be transparent and intelligible. Evidentiary record was so thin that court could not properly assess whether decisions were correct or reasonable. It could not be determined who applied exemptions to documents, what definition of exemptions was used and what consideration was given to exercise of discretion. Material did not provide court with basic information it needed to discharge its role on judicial review. Reasons did not show that decision-maker was aware of discretion to release exempted information and exercised discretion in one way or other. Decision could not be rendered on paucity of evidence. Case was remitted to different decision-maker for redetermination.

Leahy v. Canada (Minister of Citizenship and Immigration) (Sep. 4, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-302-11) Decision at 206 A.C.W.S. (3d) 152 was reversed. 221 A.C.W.S. (3d) 1009.