Focus On
NEW In-House Counsel | Insurance | Intellectual Property | Immigration | Natural Resources | Real Estate | Tax

Digests

Latest

Thursday, February 02, 2017 @ 7:00 PM

Aboriginal Law - Aboriginal lands - Duties of the Crown - Fair dealing and reconciliation - Consultation and accommodation

Appeal by Canadian Silica Industries Inc. and Jeffrey Bond (collectively, “CSI”) and the Director of the Environmental Assessment Office (EAO) from the decision in a judicial review proceeding instituted by the Fort Nelson First Nation. The underlying dispute centered on the CSI frac sand mine, located in the traditional territory of the First Nation. CSI had applied to move the mine into production. The First Nation wrote to the EAO, expressing concern that the project was reviewable, requiring an environmental assessment. It argued that production capacity for the project exceeded the numeric threshold for reviewability based on the total amount of sand and gravel to be excavated. Before the EAO could respond to the First Nation, CSI sent a letter seeking confirmation of its view that the project was not reviewable because the production level for products to be sold and used from the operation would be less than 240,000 tonnes per year. The EAO wrote back to CSI, placing responsibility with CSI to determine whether or not the project met the threshold for reviewability. In the letter, the EAO stated that a project with the capacity of CSI’s mine would not be reviewable. The EAO then responded to the First Nation, acknowledging the First Nation’s interpretation of the term “production capacity”, while reiterating its position that production capacity included only sand and gravel produced for sale or use, not all excavated material. Further correspondence was exchanged between the EAO and the First Nation before the First Nation commenced its petition for judicial review. The judge found the EAO’s interpretation of the threshold for reviewability unreasonable. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Civil Litigation - Civil procedure - Parties - Class or representative actions - Procedure - Stay of action due to parallel proceeding

Appeal by the representative plaintiffs in a proposed multi-jurisdictional class action from an order conditionally staying their action. The appellants commenced a multi-jurisdictional action in Saskatchewan alleging that the defendants artificially increased the price of diamonds by unlawfully restricting global supply. They sought to certify a claim on behalf of Canadian residents in all provinces, except British Columbia, who paid inflated prices for diamonds. Similar class actions were launched in other provinces, including Ontario. The respondent was the representative plaintiff for the Ontario action, which was commenced on behalf of residents of all provinces except British Columbia. The respondent applied for a conditional stay of the appellants’ action pending a certification decision in the Ontario proceeding. The certification judge determined that the right of a representative plaintiff to make submissions pursuant to s. 5.1 of the Class Actions Act included the right to file evidence and apply for a stay. The judge concluded that Ontario was the appropriate venue for the multi-jurisdictional class action. The appellants’ action was stayed pending determination of the certification application in the respondent’s action. The appellants appealed. Thereafter, the Ontario action was certified for settlement purposes. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Bankruptcy & Insolvency Law - Property of bankrupt - Trust property - Exempt assets - Home

Appeal by the trustee in bankruptcy for the husband from a declaration proceeds from the sale of his home were exempt from seizure by the trustee. The husband and his former wife were married between 2000 and 2005. The wife and two children remained in the family home post-separation. The home was registered solely in the husband’s name. The husband continued to pay all expenses related to the home. In 2006, the husband commenced divorce proceedings. The husband subsequently experienced financial difficulties and arranged for the sale of the home in 2009. The net proceeds from the sale, approximately $29,000, were held in trust pending determination of distribution. Two months later, the husband made an assignment in bankruptcy. In 2010, the husband and the wife agreed she would receive the net proceeds from the sale of the home, subject to any claim by the trustee in bankruptcy. The trustee took the position that the proceeds were non-exempt property and thus challenged the wife’s entitlement. The wife applied for interim distribution. The chambers judge found that the husband’s sale of the family home was not voluntary, and the proceeds were thus exempt from execution or seizure under s. 2(1)11 of the Exemptions Act, and therefore did not vest in the trustee. The trustee appealed. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Constitutional Law - Canadian Charter of Rights and Freedoms - Remedies for denial of rights - Procedural remedies - Damages

Appeal by Ernst from a judgment of the Alberta Court of Appeal affirming a decision striking her claim against the Alberta Energy Regulator. Ernst owned land near Rosebud, Alberta. She opposed the activities of EnCana Corporation, which engaged in hydraulic fracturing and drilling close to her property. Ernst claimed that the Alberta Energy Regulator (Board), a quasi-judicial regulatory board, breached her right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. She asserted that the Board had arbitrarily, and without legal authority, restricted her communications with it and that she was therefore unable to properly register her concerns that Encana was adversely impacting the Rosebud Aquifer and her groundwater supply. She brought a claim against the Board for damages as an “appropriate and just” remedy under s. 24(1) of the Charter for that alleged breach. The Board applied to strike this claim on the basis, among others, that it was protected by an immunity clause which precluded all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administered. Both the Alberta Court of Queen’s Bench and the Court of Appeal found that Ernst’s claim for Charter damages should be struck out. The Board was protected by a broadly worded immunity clause, namely, s. 43 of the Energy Resources Conservation Act (Act). Ernst’s position was that this immunity provision was unconstitutional because it purported to bar her claim for Charter damages. She submitted that the only issue on this appeal was whether the immunity clause was constitutionally inapplicable or inoperable to the extent that it barred a claim against the Board for Charter damages. She accepted, as the Alberta courts found, that the immunity clause on its face barred her claim. The issue was therefore whether this immunity clause was unconstitutional to the extent that it did so. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Labour Law - Unfair labour practices - By employer - Bargaining in bad faith - Improper communications with employees - Interference with employee’s rights - Intimidation or coercion

Appeal by the employer Health Authorities from a decision allowing the respondent unions’ application for judicial review of a decision of the Labour Relations Board. The unions had alleged that the appellant had engaged in unfair labour practices due to the appellant’s communications campaign during labour negations involving press releases, letters, a website and posters. The unions alleged the appellant violated s. 11(a) of the Trade Union Act (Act) by interfering with and coercing employees in the exercise of their rights under the Act and s. 11(1)(b) by failing to bargain in good faith. The appellant believed that a 2008 amendment to s. 11(1)(a) of the Act had granted an expanded right for employers to communicate facts and opinions to their employees and it exercised that right in the 2008 round of bargaining. The Board held that the 2008 amendment effected what might be called a re-appreciation of the robustness of employees and of how vulnerable they were to intimidation and coercion. The Board dismissed all complaints except a complaint under s. 11(a) for misrepresenting retroactive pay issues. By way of a remedy, the Board enjoined the appellant from further violating the Act. The Board concluded that the appellant had a right to communicate both with health care workers and the public about the status of its bargaining proposals and found that, but for the misleading commentary concerning retroactive pay, the appellant’s communications had not offended the Act. The Chambers judge found several aspects of the Board’s approach to the alleged violations unreasonable and ordered the Board to reconsider its decision except for its finding of the s. 11(a) violation. The appellant argued that the judge erred in applying a more rigorous standard of review than reasonableness and by substituting his own conclusions for those of the Board. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Government Law - Crown - Crown lands and property

Appeal by the trustees of the Pinder Family Trust from the summary dismissal of its action against the Minister of the Environment and Parks Canada. The family leased a cottage lot from Parks Canada in Prince Albert National Park under two 42-year leases, the first of which commenced in 1948. The trustees acquired the lease in January 1995. A cottage and deck were constructed on the lot. In 2005, one of the trustees, Pinder, applied for approval of repairs to and enlargement of the deck. The Waskesiu Lake Realty Officer responded that the deck did not comply with the approved site plan of 1994 and that the deck and a shed extended well into the setbacks. She advised that Parks Canada would not review the application until the deck was brought into compliance with all required setbacks. Pinder proceeded with the repairs and extension of the deck without a building permit. When the officer learned of the repairs, a site inspection was instituted. It was concluded that the reconstruction went beyond normal repair and maintenance, constituting a complete redevelopment of the deck with an increased footprint. Meetings ensued. In 2012, Parks Canada advised Pinder that the lease would be terminated if the deck was not brought into compliance with the applicable regulations regarding projections from cottage structures. The trustees commenced proceedings seeking declarations that their lease was in good standing and that their cottage did not contravene the regulations, an injunction preventing the authorities from terminating the lease or taking any other action with respect to the deck and cottage, and damages. The proceeding was summarily dismissed. The judge considered the deck a part of the cottage, not simply a projection that was exempt from the setback regulations the authorities sought to enforce. She found that Pinder’s repair work required a permit because it impacted the structural integrity of the cottage and deck. She found that estoppel did not prevent the authorities from terminating the lease. She found no basis for the trustees’ claims of defamation, breach of privacy and intentional misconduct. She found statements made by Parks Canada to Pinder’s neighbours substantially true. She found that no common law tort of breach of privacy existed. She applied the presumption that the Crown officers acted in good faith in dismissing the intentional misconduct claim. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Employment Law - Wrongful dismissal - Dismissal without cause

Appeal by Alberta Investment Management Corporation (AIMCo) from the award to Styles in his wrongful dismissal claim. There was no dispute that Styles was dismissed from his position with AIMCo as an investment manager in 2013 without cause. He received compensation for his dismissal without cause as per the terms of his employment contract. The dispute concerned Styles’ entitlement to bonuses under AIMCo’s Long Term Incentive Plan. The objectives of the Plan were to motivate and reward key employees. No bonuses were payable under the Plan until four years after employment commenced, as it was only at time that the bonus formula could be applied. The Plan contained a statement that only active AIMCo employees were entitled to payment under the Plan. As Styles worked for AIMCo for less than four years, and was no longer an active employee, AIMCo took the position that no compensation pursuant to the Plan was payable to Styles following his dismissal. The Court accepted that AIMCo did not dismiss Styles in order to avoid paying compensation to him according to the Plan. However, the Court found the wording of the Plan inherently contradictory, noting that it made no sense that the Plan was intended to attract top talent, while providing for AIMCo’s right to terminate employment without notice and its entitlement to deny claims to compensation under the Plan in such a circumstance. Since it was AIMCo that created the circumstance under which Style was unable to receive his Plan entitlements, the Court awarded Styles the benefits he would have received under the Plan, prorated based on the actual duration of his employment. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Family Law - Maintenance and support - Child support - Calculation or attribution of income - Financial disclosure - Considerations - Retroactive awards

Not applicable ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Maintenance and support - Practice and procedure - Orders - Interim or interlocutory orders - Appeals and judicial review

Appeal by the husband from an interim order regarding parenting arrangements, child support, and spousal support. The parties moved in together in 2007, married in 2009 and separated in May 2015. Their children were two and seven years of age. The wife remained in the home following separation. She was unemployed from 2008 onward due to health reasons. In 2016, the parties agreed to an equal parenting arrangement. Following separation, the husband’s earnings went to a joint bank account that the wife was able to use to pay all expenses associated with the family home. In April 2016, the husband closed the account on the basis that the wife’s withdrawals left him unable to meet his own expenses. Thereafter, the husband made monthly deposits on account of child support and continued to make mortgage, property tax and insurance payments on the family home, in addition to the wife’s car payments. The wife commenced divorce proceedings in May 2016. The court made an interim order for joint custody with shared parenting, ordered interim child support of $1,173 based on the husband’s income of $85,783, with two months’ retroactive support, and interim spousal support of $600, with four months’ retroactive support. The husband was required to continue the home and car payments. Further issues of retroactive support were reserved for trial. The husband appealed. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Review boards - Duties and powers - Orders - Dispositions - Conditional discharge

Appeal by Girard from a disposition of the Ontario Review Board (Board). Girard was found not criminally responsible due to mental disorder on counts of resisting a peace officer and failing to attend court. Girard was detained at North Bay Regional Health Centre. The Board found him a significant threat to the safety of the public. Girard was diagnosed with oppositional defiant disorder and cannabis use disorder. At the Board’s third hearing to review Girard’s disposition, the Chair excluded Girard from the hearing. Girard insisted that he be referred to as the “General Executor” and challenged the Board’s jurisdiction to exclude him. Amicus was appointed to represent Girard’s interests. The Board ordered a conditional discharge on conditions that were significantly less restrictive than those of the previous disposition. ... [read more]