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Constitutional Law

DISTRIBUTION OF LEGISLATIVE AUTHORITY

By-law did not impact or intrude on core of federal power

Applicant operated aerodome in respondent city. Applicant had been undertaking number of improvements to aerodome that involved use of fill. Applicant refused to comply with city’s by-law because aerodomes fell under federal jurisdiction and by-law did not apply to it. Parties brought competing applications. Application judge declared that by-law was valid and binding on applicant in respect to landfill activities. Applicant appealed. Appeal dismissed. Application judge undertook relevant analysis in determining whether interjurisdictional immunity applied. Application judge correctly characterized by-law. Real issue was whether by-law impermissibly trenched on core of federal aeronautic power. Effect of by-law was not to improperly intrude into development of aerodrome qua aeronautical enterprise. By-law was designed to regulate quality of fill and prevent use of toxic or contaminated fill in city. By-law did not impact or intrude on core of federal power.
Burlington Airpark Inc. v. Burlington (City) (Jun. 13, 2014, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and E.E. Gillese J.A., File No. CA C57908) Decision at 234 A.C.W.S. (3d) 896 was affirmed.  241 A.C.W.S. (3d) 106.

Air Law

CARRIAGE

Airline had been entitled to refuse plaintiff return transport

Plaintiff, Canadian citizen, travelled from Canada to Jamaica on defendant airline for vacation using Canadian Citizenship Card as identification. When plaintiff attempted return to Canada one week later, airline refused permission to board without passport. Plaintiff produced Ontario driver’s licence, Ontario health insurance plan card and social insurance card, but airline refused to issue boarding pass without passport. Plaintiff made no effort to obtain emergency Canadian passport, but did obtain Jamaican passport and returned to Canada two weeks later. Plaintiff brought action for damages for breach of contract and negligence. Action dismissed. Both legislation and government policy required airlines to thoroughly screen passengers travelling to Canada so as to ensure they would be permitted entry on arrival. Defendant’s International and Trans-Border Tariff, required by regulation, gave airline right to refuse transport for any reason, including if travel documents not in order, and stipulated that airline not liable for any refusal to transport. Tariff also provided that any passenger desiring transport across international or transborder boundary responsible for obtaining all necessary travel documents. Identity Screening Regulations (Can.), under Aeronautics Act (Can.), required international passengers to produce government issued photo identification including name, date of birth and gender or restricted area identification card but did not claim exclusivity. Canada Border Services Agency published guide confirming transporters’ responsibility to ensure passengers properly documented and identifying passport as only reliable and universally accepted identification document. Guide also confirmed international transportation companies could require passengers to present passports and that passengers presenting other documents, such as Canadian Citizenship Card, could be subject to delays or refusals to transport. It specified Canadian Citizenship Card not travel document, but could be used as evidence of citizenship in Canada. Airline had been entitled to refuse plaintiff transport and had, in fact, operated in accordance with directives from Canada Border Services Agency concerning fraudulent use of Canadian Citizenship Cards in Jamaica.
Robotham v. WestJet Airlines (May. 26, 2014, Ont. S.C.J., Spence J., File No. CV-12-448628) 241 A.C.W.S. (3d) 4.

Charter of Rights

RIGHT TO COUNSEL

Trial judge relied on evidence which was not admissible

Accused appealed conviction for “over 80”. After hearing screeching sounds of tires and sound of car hitting something, officer arrived at scene 30 to 60 seconds later and saw that vehicle had hit pole. Officer saw woman and two males standing around outside of vehicle. Males told officer that they had arrived after accident and had not seen who was driving vehicle. Officer overheard accused tell two males that she was “okay”. Accused testified on Charter application that, prior to being advised of her rights and being provided caution, she was asked by officer whether she was driving and that she admitted to driving because she felt compelled to do so. Accused was arrested for impaired driving. During Charter submissions, Crown conceded that officer breached accused’s Charter rights and that her statements were inadmissible at trial. At trial, only evidence available to trial judge as to whether Crown had proven charges beyond reasonable doubt was officer’s evidence. Trial judge concluded that when someone was asked whether they were okay, not being driver was very unusual phenomenon. Trial judge stated that accused admitted to officer that she was driver and further relied on her statements to officer as to where she had been and that she “may have hit something”. Appeal allowed, conviction quashed, acquittal entered. Trial judge should not have considered and relied on any evidence of accused, as it was only admissible evidence on Charter application. Trial judge’s comment that accused did not deny that vehicle was hers was either inadmissible evidence from accused’s evidence on Charter application or adverse finding based on her right to silence, either of which was improper at law. Trial judge relied on evidence which was not admissible in determining whether Crown established beyond reasonable doubt that accused was driver of vehicle. Trial judge relied on circumstantial evidence that accused was driver of vehicle when, in absence of any direct evidence, it could not be said that only reasonable inference of circumstantial evidence was that accused was driver. Errors were central to reasoning process and disposition by trial judge. When evidence was thoroughly reviewed, there was not sufficient evidence at trial capable of supporting finding beyond reasonable doubt that accused was driver. Verdict was unreasonable.
R. v. Unelli (May. 28, 2014, Ont. S.C.J., Ricchetti J., File No. SCA(P) 335/13) 113 W.C.B. (2d) 737.

Industrial and Intellectual Property

PATENTS

Applicant did not hold any patents and did not enjoy special patent rights

Applicant manufactured generic pharmaceuticals and was wholly owned subsidiary of company that owned patents. Board found applicant came within definition of “patentee” under Patent Act (Can.), and was subject to board oversight in respect of patented medicines and obligated to comply with Act and Regulations and file information that would allow board to determine whether it was charging excessive prices for medicines. Application for judicial review of board’s decision. Application granted. Relevant provisions were enacted out of concern patent holders could take undue advantage of monopolies to detriment of consumers. Applicant did not hold any patents and did not enjoy special patent rights. Applicant only entered market with parent’s authority once parent had already lost its exclusivity so did not enjoy monopoly. Board failed to consider French version of Act defined patentee narrowly and close to rights of patent holder. Constitutionality of legislation depended on close connection to patent protection, which fell under Federal jurisdiction, and potential undue exploitation by monopolies. Considering all facts, board’s conclusion was unreasonable. Amendments to Act that gave board control over prices of patented medicine did not alter basic purpose of legislation or expand board’s mandate so provisions themselves remained constitutional. Matter remitted back with direction board find applicant was not patentee.
Sandoz Canada Inc. v. Canada (Attorney General) (May. 27, 2014, F.C., James W. O’Reilly J., File No. T-1616-12) 241 A.C.W.S. (3d) 107.

Immigration

REFUGEE STATUS

Applicants faced risk more serious than that faced by average Honduran

Applicants were citizens of Honduras and they claimed they feared criminal gang. Applicants’ family owned prosperous clothing business and principal applicant owned two other businesses. Applicants claimed that they were repeatedly threatened by gang. Principal applicant’s wife was abducted at gun point. Police officer was involved. Applicants made claim for refugee protection. Board concluded that applicants, as victims of crime, did not fear persecution under one of convention grounds and claim under s. 96 of Immigration and Refugee Protection Act (Can.), failed. Board found that applicants did not face personalized risk under s. 97(1)(b) of Act since other citizens of Honduras who were economically successful faced threat of extortion. Applicants’ claim for refugee protection was refused. Applicants applied for judicial review. Application granted. It was crucial to conduct individualized inquiry as to nature of risk faced by applicants before determining whether risk was one that was prevalent or widespread in that country. It was not sufficient to conclude that risk of criminal activity encountered by person was generalized because population at large or important segment of population was subject to same risk. Instead of focusing on fact that wealthy people were frequently targeted by gang in Honduras, board should have looked to applicants’ particular situation. Applicants were not simply at risk of theft and extortion because they were successful, but were also repeatedly threatened, shot at and subject to kidnapping attempts. Applicants faced risk more serious than that faced by average Honduran. Board’s decision was unreasonable because it did not properly conduct required individualized inquiry.
X, Re (Jun. 5, 2014, F.C., Yves de Montigny J., File No. IMM-12628-12) 241 A.C.W.S. (3d) 188

Aboriginal Peoples

LAND CLAIMS

Province’s land use planning and forestry authorizations inconsistent with duties owed to Tsilhqot’in

Tsilhqot’in Nation, semi-nomadic group of bands with unresolved land claims, objected when B.C. granted commercial logging licence on land considered part of Tsilhqot’in traditional territory. Tsilhqot’in original land claim amended to include claim for Aboriginal title to land at issue. Supreme Court of British Columbia held that Tsilhqot’in claim not established, but Tsilhqot’in’s appeal allowed. To ground Aboriginal title, in sense of regular and exclusive use, requires sufficient, continuous and exclusive occupation. Analysis of Aboriginal culture and practices determines whether group exercised effective control at time of assertion of European sovereignty. Specific, intensively occupied areas need not be established; sufficient that impugned parts of land regularly used by Tsilhqot’in and that Tsilhqot’in repelled other people from land. Evidence supported finding that Tsilhqot’in treated land as exclusively theirs. Prior to establishment of title, Crown must consult in good faith, with Aboriginal groups asserting title, about proposed uses and may also be required to accommodate interests of claimant groups. Strength of claim and seriousness of potentially adverse effect upon interest claimed will determine level of consultation and accommodation required. Once Aboriginal title established, Crown, in addition to complying with procedural duties, must justify any incursions. Proposed government action must be consistent with s. 35 of Constitution Act, 1982 (“CA”), which requires compelling and substantial governmental objective that government action be consistent with Crown’s fiduciary duty to Aboriginal group. Province breached duty to Tsilhqot’in by failing to consult and failing to accommodate their interests. Forest Act (B.C.) (“FA”), provincial law of general application applies, on its face, to Aboriginal title land, subject to constraints of s. 35 of CA, and division of powers. Now that Aboriginal title established, however, FA no longer applies as timber no longer falls within definition of “Crown timber”. Issuance of timber licences, direct transfer of Aboriginal property rights to third party, constitutes meaningful diminution in Aboriginal group’s ownership right which Crown was required to justify. Doctrine of interjurisdictional immunity ousted by s. 35 framework as tension between Aboriginal title holders and province, not two levels of government. Province’s land use planning and forestry authorizations under Forest Act inconsistent with its duties owed to Tsilhqot’in.
Xeni Gwet’in First Nations v. British Columbia (Jun. 26, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34986) Decision at 217 A.C.W.S. (3d) 1 was reversed.  241 A.C.W.S. (3d) 2.

Industrial and Intellectual Property

COPYRIGHT

Establishing minimum fee for use of existing works does not affect rights conferred on copyright holders

Relations between artists and certain federal government institutions that engage artists to provide artistic production governed by Status of the Artist Act (Can.) (SAA), which provides for certification of associations to represent artists and negotiate with institutions to conclude scale agreements setting out minimum terms and conditions for provision of artists’ services. Negotiations for scale agreement between CARFAC and RAAV, certified associations for Canadian visual artists, and National Gallery of Canada (NGC) broke down after NGC, relying on legal opinion, refused to agree to minimum fees for licensing or assignment of copyright in existing artistic works. CARFAC and RAAV complained to Canadian Artists and Producers Professional Relations Tribunal that NGC failed to bargain in good faith. Tribunal held that licensing or assignment of copyright in existing works can be subject to binding minimum fees and NGC failed to bargain in good faith by adopting uncompromising position. Majority in Federal Court of Appeal allowed NGC’s application for judicial review, finding that allowing scale agreements to impose minimum fees for existing works would conflict with Copyright Act (Can.) (CA). Appeal allowed. Reasonable for tribunal to conclude that scale agreement includes provision of existing artistic works. Nothing in SAA supported treating commissioned and existing works differently. Authors bound by SAA include authors of artistic works within meaning of CA, i.e. artist already produced artistic work. To exclude existing works from scale agreements would result in SAA having limited impact; NGC acknowledged it rarely commissions works. Collective bargaining by artists’ associations under SAA in respect of scale agreements covering existing artistic works not contradicting any provision of CA. Artists’ associations are simply bargaining agents and have not taken for granted any property interest in any artist’s copyright. Establishing minimum fee for use of existing works does not affect rights conferred on copyright holders nor does it cause any conflict with provisions regarding collective societies since minimum fees for existing works do not apply to collective societies. When dealing with federal governmental producers for use of existing works, artists may assign or license copyright to collective society, in which case CA tariffs apply, or may deal directly with producer, in which case applicable SAA agreements apply. Tribunal’s finding that NGC failed to bargain in good faith not unreasonable.
Canadian Artists’ Representation / Le Front des artistes canadiens v. National Gallery of Canada (Jun. 12, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Wagner J., File No. 35353) Decision at 226 A.C.W.S. (3d) 557 was reversed.  240 A.C.W.S. (3d) 963.

Courts

JURISDICTION

Unclear what legal basis applicant relied upon in bringing application to court

Applicant purchased 114 properties between 2004 and 2013 as part of long standing effort to construct second span of Ambassador Bridge over Detroit River. In September 2013, respondent city issued repair orders in relation to 114 vacant properties as they had become blight on community. Applicant appealed those orders to Property Standards Committee. In October 2013, applicant filed application to Federal Court seeking declaration that, among other things, Ambassador Bridge was considered “federal undertaking”, and as such, was not subject to municipal by-laws. City brought motion to strike out notice of application on grounds that Federal Court did not have jurisdiction to hear application. Motion granted. It was plain and obvious that application lacked reasonable cause of action, and that it was bereft of any possibility of success. Applicant did not appear to be challenging any particular decision of city, Property Standards Committee, or any order of federal board, commission or other tribunal. Rather, it appeared to be simply seeking legal opinion regarding applicability of Act to Incorporate the Canadian Transit Company from court. Court did not have statutory authority to grant such remedy. It was equally unclear what legal basis applicant had relied upon in bringing application to court.
Canadian Transit Co. v. Windsor (City) (May. 21, 2014, F.C., Michel M.J. Shore J., File No. T-1699-13) 240 A.C.W.S. (3d) 875.

Citizenship

APPEAL

Judge did not raise discrepancy in declared absences with foreign national

Foreign national was stateless individual who was born in Kuwait and who became permanent resident of Canada on June 7, 2003. Foreign national applied for citizenship on August 8, 2008. Foreign national had interview before judge on April 18, 2013. Foreign national did not submit passport which covered period from September 10, 2004 to May 4, 2009, so that absences were not verifiable. Judge noted credibility concerns regarding discrepancy between absences listed on foreign national’s original application (354 days) and his residence questionnaire (34 days). Judge was not satisfied that foreign national had proven that he was physically present in Canada for 1,095 days during relevant period and denied application. Foreign national appealed. Appeal allowed; application referred back to another citizenship judge for re-determination. While judge’s decision was not unreasonable, decision hinged on negative credibility finding, based on discrepancy in declared absences, however judge did not raise this discrepancy with foreign national. Given necessary procedural fairness afforded to applicants in citizenship applications and centrality of this issue to foreign national’s claim, there had been breach of procedural fairness.
Abdou v. Canada (Minister of Citizenship and Immigration) (May. 26, 2014, F.C., Michael D. Manson J., File No. T-1638-13) 240 A.C.W.S. (3d) 814.

Arrest

LEGALITY

Accused’s arrest and custody occurred during extenuating and exigent circumstances

Application by accused for stay of proceedings because he claimed that his rights under Canadian Charter of Rights and Freedoms were violated. During unrest that occurred during June 2010 Toronto G20 Economic Summit, accused, who was American citizen, was charged with wearing disguise with intent to commit indictable offence and with three counts of mischief, as result of his participation in that unrest. Crown claimed that accused was member of group that engaged in campaign to damage property at various locations in city. On June 26, 2010 accused was alleged to have smashed windows in bank, at commercial emporium and at police headquarters. He was, however, arrested for unrelated matter on June 27, 2010 and officer arrested him because he was ordered to do so by superior officer. Crown conceded that this arrest was unlawful. When he was arrested he was searched and his possessions were seized without articulable cause, contrary to s. 8 of Charter, and his arrest and subsequent detention were arbitrary and it constituted breach of s. 9 of Charter. Once in custody he was not informed of his right to counsel, he was denied opportunity to exercise right to counsel when he asked for it and he was held in custody in onerous conditions for 14 hours, during eight of which he remained in zip-tie hand restraints. He was released and he was not charged. Accused was charged several months later for June 26 incidents after investigator reviewed surveillance video evidence taken on that date and he compared it to pictures of accused that were in camera that police seized and to picture of accused that police took when he was arrested on June 27. Application dismissed. Charter-infringing state conduct was serious and impact of breaches on accused’s Charter-protected interests were significant. However, accused’s arrest and his custody occurred during extenuating and exigent circumstances. If stay was granted it would disregard fact that people who smashed windows at G20 also threatened community’s right to function in free and democratic way. Abuse that accused suffered would not be perpetuated or aggravated by permitting matter to proceed to trial. Accused failed to demonstrate that this was one of those clearest of cases in which stay was required.
R. v. McCormic (May. 21, 2014, Ont. S.C.J., Clark J., File No. CR-13-10000835-0000) 113 W.C.B. (2d) 630.
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