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Thursday, December 15, 2016 @ 7:00 PM

Transportation Law - Railways - Regulation - Interswitching

Appeal by the Canadian National Railway (CN) from a decision of the Canadian Transportation Agency (Agency) finding that CN exceeded the Maximum Revenue Entitlement (MRE) imposed by the Canada Transportation Act (Act)for moving western grain during the 2013-2014 crop year. In 2000, the MRE program was instituted. Its objective was to reform the western grain handling and transportation system to a more deregulated model. In 2001, the Agency determined that interswitching revenue, namely revenue derived from shipping another carrier’s good a short distance from their hub to an interchange point, fell with the definition of “grain movement” under the Act. As a result, pursuant to the adopted methodology, a switching carrier was required to include its interswitching revenues in its total revenue for the purpose of determining its annual MRE. The linehaul carrier was required to include the entire grain movement, including the interswitching portion, in its MRE and could deduct the sum paid to the switching carrier from its revenues. However, the tonnage associated with interswitching movements was excluded from the Agency’s calculation of a railway’s revenue cap. Ever since the MRE program was implemented, CN raised concerns with the Agency’s methodology and claimed that the costs it incurred by performing switching were not adequately accounted for in its revenue entitlement. It requested a reconsideration of its interswitching revenues under the MRE program. The Agency concluded that CN had exceeded its MRE and it ordered CN to pay the overage along with a penalty, totaling $5,231,011, to the Western Grain Research Foundation. In 2015, the Agency discontinued the methodology it had used since 2001 and adopted a new methodology. The new approach allowed the interswitching carrier to retain some of the revenues accrued from switching movements. CN appealed the decision of the Agency arguing that its interpretation and application for the MRE provisions was unreasonable and that the Agency violated its rights to procedural fairness. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Criminal Law - CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Protection against cruel and unusual punishment - Protection against cruel and unusual punishment

Sentencing of the offender, Adams, for sexual offences against children. The offender used the internet to lure or attempt to lure 12 teenage girls into sexual contact and/or providing pornographic images, some of whom complied with his requests. He was convicted of multiple offences, including internet luring, criminal harassment, sexual interference, uttering threats, and distribution of child pornography. The accused, age 22, did not have a prior record at the time of the offences. The Crown sought a 14-year sentence, less credit for 20 months served in remand. The offender sought a stay of proceedings on constitutional grounds with declaratory relief. He submitted that the conditions of his detention in remand breached his ss. 7 and 12 Charter rights. The offender submitted that he was singled out for retributive treatment by guards and inmates. He claimed he was assaulted by a guard, inmates and cleaners, and subjected to an abusive inhumane strip search in addition to ongoing unwarranted abuse and disciplinary measures. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

CRIMINAL CODE OFFENCES - Sexual offences, public morals, disorderly conduct and nuisances - Offences tending to corrupt morals - Child pornography

Appeal by the accused, MB, from her conviction for possession of child pornography, distribution of child pornography, and uttering threats. The accused and the complainant were young persons. The accused had a relationship with the complainant’s former boyfriend. They subsequently exchanged text messages that turned hostile after the complainant indicated her unresolved feelings for the accused’s boyfriend. The accused messaged the complainant to state she would be assaulted if she attended her school, leading to the charge of uttering threats. During the ongoing dialogue, the accused’s boyfriend showed her sexual images the complainant had shared with him during their relationship. The accused used her phone to take photographs of the images and sent the photos to the complainant and another individual using Facebook’s direct messaging function, thereby leading to the child pornography charges. Prior to trial, the accused sought to challenge the constitutionality of the child pornography possession and distribution provisions, ss. 163.1(3) and 163.1(4) of the Criminal Code. The accused submitted the impugned provisions breached ss. 7 and 15 of the Charter, as they captured conduct unrelated to the objective of reducing the risk of harm to children, and criminalized conduct that would otherwise be lawful involving adults. The accused sought reconsideration of the Supreme Court of Canada’s 2001 ruling in Sharpe due to the fundamental shift in the parameters of the debate arising from teenagers’ widespread use of cellphones to transmit sexual images of one another. The trial judge found that Sharpe contemplated electronic transmission of such images, albeit through other mediums. The trial judge found that the accused’s conduct did not come within the Sharpe exceptions of artistic expression or consensual private creations of lawful sexual activity. No discrimination on the basis of age arose under the Sharpe exceptions. The trial judge concluded there was no reasonable likelihood an evidentiary hearing would assist in determining whether a Charter breach arose. The trial proceeded and resulted in convictions on all counts. The accused appealed. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Government Law - ACCESS TO INFORMATION AND PRIVACY - Access to information - Inspection of public documents - Bars and grounds for refusal - Solicitor-client privilege

Appeal from a judgment of the Alberta Court of Appeal setting aside a decision dismissing the University of Calgary’s application for judicial review of an Information and Privacy Commissioner of Alberta (Commissioner) decision ordering production of documents for review pursuant to the Freedom of Information and Protection of Privacy Act (FOIPP). A delegate of the Commissioner ordered the University of Calgary (University) to produce records over which it claimed solicitor-client privilege in order to verify that the privilege was properly asserted. At the heart of this appeal was whether s. 56(3) of FOIPP, which required a public body to produce records to the Commissioner “despite any privilege of the law of evidence”, allowed the Commissioner and her delegates to review documents over which solicitor-client privilege was claimed. The University was sued by a former employee who brought a claim of constructive dismissal. In October 2008, the former employee made a request for access to information under s. 7 of FOIPP, seeking records about her in the University’s possession. The University provided some records in response to the request, but claimed solicitor-client privilege over other records. In March 2009, the former employee brought an application under FOIPP seeking production of the withheld records. The University declined to provide a copy of the withheld records, and instead provided a list of documents identified by page numbers only. This way of proceeding complied with the law and the practice regarding identification of solicitor-client privileged documents in civil litigation in Alberta at that time. The University also provided a sworn affidavit from its Access and Privacy Coordinator indicating solicitor-client privilege had been asserted over the records. The delegate issued a Notice to Produce Records under s. 56(3) of FOIPP, requiring the University to produce the documents for review. The University again did not comply, and in October 2010 sought judicial review of the delegate’s decision to issue the Notice to Produce Records. This was the matter on appeal. The application judge considered the delegate’s exercise of the power to compel the production of the documents. He found that the delegate had correctly issued the notice, noting that the University had refused to substantiate in any other way its claims of solicitor-client privilege. The Court of Appeal allowed the University’s appeal, concluding that the Commissioner did not have statutory authority to compel the production of records over which solicitor-client privilege was asserted. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Family Law - DOMESTIC CONTRACTS AND SEPARATION AGREEMENTS - Types - Separation agreements - Formation - Capacity - Practice and procedure - Appeals and judicial review

Appeal by the husband from a judgment partially upholding the spousal support provisions of a separation agreement. The parties married in 1984 and separated in 2006. Their children were born in 1985 and 1988. The husband experienced mental health difficulties in his 20s, requiring hospitalization on two occasions due to depression. His condition caused problems with impulsiveness, short-term memory and disorganization. The wife developed chronic pain from injuries suffered in two pre-marriage automobile accidents. The couple’s health problems continued throughout their marriage, causing unhappiness and financial pressures throughout the 1990s. The husband’s condition improved after 2001 due to a new combination of medication. He took full-time work as a transit driver. The wife worked part-time as a pharmacy technician, moving to full-time work in 2010. However, by 2006, it had become apparent to the couple that their marriage was ending. They sold their home and a separation agreement was drafted by a lawyer retained by the wife. Counsel arranged independent legal advice for the husband. The agreement contemplated spousal support of approximately $1,320 per month, subject to a formula to calculate increases, payable for 22 years. The husband executed the agreement, believing he had no choice. The husband’s gross annual income in the years prior to trial ranged between $55,000 and $81,500. The wife’s annual income in the same period ranged between $32,000 and $49,000. The husband sought to set aside the support provisions of the agreement with termination of his spousal support obligations. The trial judge found that it was not established that the husband’s mental health challenges deprived him of capacity to enter the separation agreement and appreciate its consequences. He received complete and adequate independent legal advice prior to execution. He was not unduly influenced by the wife, as he had actively participated in the negotiation process for two months. Although the quantum of support was reasonable, the 22-year duration was contrary to the requirement of the wife to become economically self-sufficient. The provisions tied to duration were set aside. The husband was required to pay ongoing support, subject to review at the end of 2016. The husband appealed, seeking termination of his support obligation. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Creditors & Debtors Law - Execution - Stay of execution - Pending appeal

Application by the plaintiff, M. Thompson Holdings, to lift a stay of execution of a judgment under appeal. The plaintiff and the defendant, Haztech Fire and Safety Services, entered a 10.5-year commercial lease in 2013. The defendant took possession in June 2013. By September, the defendant was in breach of the lease. The plaintiff formally terminated the lease in October 2013. The plaintiff applied for summary judgment. The defendant acknowledged its breach of the lease but disputed the calculation of damages. The plaintiff obtained partial summary judgment of $6,666 for the pre-breach period, $416,991 for the post-breach period, plus approximately $80,000 in additional damages. Allowing a credit for past payment, the plaintiff was awarded approximately $500,000 plus costs of $25,000. A claim for summary judgment for future damages was dismissed. The defendant appealed to the Court of Appeal. The plaintiff sought to have the automatic stay of execution lifted with related relief due to a concern the defendant would dissipate assets pending resolution of its appeal. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Civil Litigation - CIVIL PROCEDURE - Discovery - Production and inspection of documents - Privileged documents - Documents prepared in contemplation of litigation - Solicitor-client privilege

Appeal by the assistant syndic of the Chambre de l’assurance de dommages (syndic) from a decision of the Court of Appeal setting aside in part a Superior Court declaratory judgment. In the course of an inquiry into the conduct of a claims adjuster, the syndic asked an insurer, Aviva, to send her a complete copy of its claim file with respect to one of its insured. Aviva produced a number of documents, but explained that it had withheld some on the basis that they were covered either by solicitor-client privilege or by litigation privilege. The syndic applied for a declaratory judgment against Aviva in order to obtain the documents it sought. The syndic argued that s. 337 of the Act respecting the distribution of financial products and services (ADFPS) created an obligation to produce “any ... document” concerning the activities of a representative whose professional conduct was being investigated by the Chamber, and that this was sufficient to lift the privilege. In the syndic’s opinion, litigation privilege could be distinguished from solicitor-client privilege; it was less important and was not absolute, and should therefore be applied more flexibly. The Superior Court held that an authority could not pierce solicitor-client privilege absent express words in the applicable legislation. The motion judge determined that these principles also applied to litigation privilege. Since the ADFPS contained no express abrogation, both solicitor-client privilege and litigation privilege could be asserted against the syndic of the Chamber. The Court of Appeal upheld this judgment. The Court held that even though litigation privilege was distinguishable from solicitor-client privilege, it was, to the same extent, a fundamentally important principle that could not be overridden without express language. The Court allowed the appeal, but solely to amend the terminology of the motion judge’s conclusion. The issue in this appeal was whether Aviva could assert litigation privilege against the syndic in the context of a request for documents relating to a claim file. ... [read more]

Thursday, December 15, 2016 @ 7:00 PM

Human Rights Law - DISCRIMINATION - Prohibited grounds - Mental or physical disability - Context - Workplace discrimination - Job competition - Qualifications

Appeal by Hughes from a Federal Court decision, setting aside a ruling by the Human Rights Tribunal that Hughes was subjected to discrimination on the basis of mental disability in a Transport Canada hiring process. The Tribunal found that it was discriminatory for the hiring panel to have screened Hughes out of the process after he revealed to the panel chair that he suffered from mental health issues resulting from treatment by a former employer. The Tribunal also found discrimination by the panel in declining to find that performance appraisals tendered by Hughes provided sufficient proof of his detail-oriented nature, in lieu of providing personal references. The Federal Court indicated that it would review the Tribunal’s decision on the standard of reasonableness. It went on to disagree with the Tribunal that it was problematic for the hiring panel to penalize Hughes for his lack of references, and that his documentation in lieu of references self-evidently illustrated his attention to detail in the same manner as personal references. ... [read more]

Thursday, December 08, 2016 @ 7:00 PM

Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage

Appeal by the plaintiff, Brugger, from dismissal of his action and from a counterclaim judgment in favour of the defendant, the IWA Forest Industry LTD Plan. The plaintiff was disabled in a 2001 automobile accident and received benefits under the defendant’s LTD insurance plan. He also received disability benefits from the ICBC calculated as a percentage of his gross earnings. In addition, the plaintiff received an ICBC settlement of $197,775 in satisfaction of his tort claim, plus $240,000 in underinsured motorist protection benefits. Payments under the defendant’s LTD Plan were conditional upon a reimbursement agreement in the event of an eventual settlement. The defendant sought repayment of $59,861 in LTD benefits pursuant to the LTD Plan and ceased payment of further benefits. The plaintiff commenced proceedings alleging wrongful termination of benefits. The defendant counterclaimed for payment under the reimbursement agreement. A summary trial judge concluded that the defendant was entitled to repayment of $40,383 plus interest. The plaintiff’s claim was dismissed. The plaintiff appealed. ... [read more]

Thursday, December 08, 2016 @ 7:00 PM

Procedure - Trials - Adjournment

Appeal by the accused from conviction for assault with a weapon and aggravated assault. The appellant argued that the trial judge erred in dismissing his application brought on the opening day of the trial for an adjournment to enable him to retain new counsel. He had discharged his prior counsel, arguing that counsel failed to follow up with certain issues. The appellant also argued that there were disclosure issues he wanted to have pursued by his new counsel and applications for Charter relief. The trial judge found that the counsel the appellant had discharged was very experienced and would have brought Charter applications if he considered them to have any merit. ... [read more]