In the recent case of Galambos v. Perez, P made voluntary sizeable advances of cash — some $200,000 in total — to her employer, a law firm founded by G, often without informing G beforehand. Although P was hired as the firm’s part‑time bookkeeper she effectively became the office manager, overseeing the firm’s income, expenses and accounting and had unlimited signing authority on the firm’s non‑trust bank accounts. Initially, to resolve a cash flow problem, P obtained a personal loan and deposited $40,000 into the firm’s bank account. G did not ask her to advance this money and he did not even know about the advance until several days later. G instructed P to reimburse herself with interest, instructions she did not follow other than by repaying herself $15,000. As the firm’s financial situation deteriorated, P made several more deposits of her own funds into the firm’s account and covered some firm expenses with her personal credit card. The firm, during the time she worked for it, handled the preparation and execution of new wills for P and her husband as well as two mortgage transactions. The firm did not expect to be and was not paid for these services. When the firm went into receivership and G went bankrupt P found herself an unsecured creditor and recovered nothing. P then sued G and the defunct firm for negligence, breach of contract and breach of fiduciary duty.
The trial judge dismissed P’s claims, finding that her rights were those of a creditor and nothing more. The Court of Appeal set aside that decision and granted P judgment for $200,000. The Court of Appeal concluded that there were ad hoc fiduciary duties owed to P by G and his law firm in relation to the cash advances. It held that: there was a power‑dependency relationship between P and G; it is not necessary that there be any mutual understanding that G had relinquished his self‑interest in favour of P’s for the duty to arise; P was vulnerable; and, the evidence overwhelmingly supported the conclusion that G took advantage of her trust.
The Supreme Court of Canada restored the decision of the trial judge and held that the Court of Appeal had exceeded the limits of appellate review and unduly extended the scope of fiduciary obligations. Absent an error of law or a palpable or overriding error of fact the SCC held that the trial judge’s findings of fact and conclusion that a fiduciary duty did not exist must be upheld on appeal. In this case, the Court of Appeal retried the case on the basis of the written record and substituted its view of the facts and their significance for that of the trial judge.
The SCC held that the Court of Appeal erred in three respects.
1. The conclusion that G was in a position of power and influence relative to P was at odds with the findings of fact at trial that P was not vulnerable in terms of her relationship with G. There was no evidence of any express requests for loans, which makes it illogical to conclude that P was unable to refuse requests when there were in fact none.
2. Not all power‑dependency relationships are fiduciary in nature and identifying a power‑dependency relationship does not, on its own, materially assist in deciding whether the relationship is fiduciary or not. There are no special rules for recognition of fiduciary duties in the case of power‑dependency relationships. The Court of Appeal erred when it held that, in the case of a power‑dependency relationship, a fiduciary duty may arise even in the absence of a mutual understanding that one party would act only in the interests of the other. In both per se and ad hoc fiduciary relationships, there will be some undertaking on the part of the fiduciary to act with loyalty. The Court of Appeal’s analysis went wrong when it found a fiduciary duty without finding an undertaking, express or implied, on the part of G that he would act in relation to the loans only in P’s interests, and based its conclusion that a fiduciary duty existed on P’s expectations alone.
3. The Court of Appeal appears to have accepted the proposition that a fiduciary duty may arise even though the fiduciary has no discretionary power to affect the other party’s legal or important practical interests. The nature of this discretionary power to affect the beneficiary’s legal or practical interests may, depending on the circumstances, be quite broadly defined. It may arise from power conferred by statute, agreement, from a unilateral undertaking or, in particular situations by the beneficiary’s entrusting the fiduciary with information or seeking advice in circumstances that confer a source of power. The presence of this sort of power will not necessarily on its own support the existence of an ad hoc fiduciary duty; its absence, however, negates the existence of such a duty. The findings of the trial judge that the evidence did not establish that P relinquished her decision‑making power with respect to the loans to G, and that G had no discretionary power over P’s interests that he was able to exercise unilaterally or otherwise, were fatal to P’s claim that there was an ad hoc fiduciary duty on G’s part to act solely in her interests in relation to these cash advances.
Finally, the SCC held there had been no conflict of interest. Given the limited nature of the retainers and the unusual nature of the advances G and the law firm did not breach their duty of care arising from the solicitor‑client relationship between them and P. There was no actual conflict of interest between the firm’s duties to her in connection with the limited retainers and its interest in receiving the advances and there was not any reasonable apprehension of conflict. Given the very limited nature of the retainers and the manner in which the advances were made — unsolicited and frequently without advance notice — there was no duty on the firm under negligence principles to give P advice about those advances or to insist that she obtain independent legal advice about them.
Regards,
Blair
Monday, November 16, 2009
Thursday, November 12, 2009
Letters of Credit and the Bank's Duty of Good Faith
In the case of Nareerux Import Co. Ltd. v. Canadian Imperial Bank of Commerce, 2009 ONCA 764 the Court of Appeal held that a Bank owes a duty of good faith to the holders of letters of credit so that the bank cannot act in a manner which would defeat the purpose of the letter of credit.
Robertson was a customer of CIBC, and financed the purchase of shrimp from Thailand Fisheries through a credit facility arranged with the Bank. Upon arrival in the United States, the shrimp were stored in large warehouses where they awaited purchase from various Sam’s Club outlets. Payment was to be made under letters of credit upon presentation to CIBC of purchase orders and receipts showing that the shrimp had been taken down by Sam’s Club.
Although Thai Fisheries had not been paid for all of the shrimp it supplied under the letters of credit, the proceeds of sale from the shrimp were used by Robertson and the Bank to reduce the Robertson line of credit that had been arranged to finance the trade transaction.
Thai Fisheries argued that CIBC and Robertson colluded to reduce Robertson’s line of credit – and therefore CIBC’s exposure – by arranging for shrimp to be sold without documentation from Sam’s Club and then relying on non-compliance with the letters of credit to refuse payments, while at the same time directing the monies received to reduce Robertson’s overdraft instead of ensuring that the monies were used to pay Thai Fisheries under the letters of credit.
CIBC argued that it did nothing improper, that it complied with the provisions of the letters of credit, which were not honoured because the requisite documentation was not presented, and that Thai Fisheries knowingly ran the risk of this eventuality when it accepted the letters of credit.
The trial judge ruled in favour of Thai Fisheries and granted judgment in its favour in the amount of $10,381,035 together with pre-judgment interest and costs. The court of Appeal dismissed the appeal.
CIBC raised one defence only: Thai Fisheries failed to comply with its obligation imposed by the special conditions in the Letters of Credit because receipts from Sam’s Club, through Robertson, were never delivered to CIBC. Since letters of credit must be strictly construed the delivery of the receipts from Sam’s Club was a pre-condition to payment. No receipts were provided for the shrimp in question, and therefore CIBC was not liable to pay.
The Court of Appeal held that CIBC was not entitled to rely upon the defence of non-compliance because:
(a) CIBC knowingly contributed to, or acquiesced in, the circumstances that undermined the prospect of strict compliance with the Letter of Credit, then used that non-compliance to justify the refusal of payment. It did so in collaboration with its customer, Robertson, in order to ensure that the proceeds of sale of the shrimp sold under the Letters of Credit were used to reduce the Bank’s exposure on the Robertson line of credit without corresponding payments being made to Thai Fisheries under the Letters of Credit. This conduct was either a direct breach of the principle of autonomy underlying letter of credit transactions or a breach of CIBC’s implied duty of good faith not to act in a manner meant to defeat or eviscerate the purpose of the Letters of Credit, On either scenario CIBC, as issuer of the Letters of Credit, was precluded from raising the defence of non-compliance.
(b) CIBC failed in its obligation to give timely notice of dishonour to Thai Fisheries when it held back on notifying the seller for more than a year that no receipts would be forthcoming and that the Letters of Credit would be cancelled. In doing so, CIBC placed Thai Fisheries in a position where it reasonably believed that the Letters of Credit would be honoured when the problems with the receipts had been resolved. Consequently, Thai Fisheries took no steps to protect itself by seeking return of the shrimp until it was too late and the shrimp had all been sold.
Regards,
Blair
Robertson was a customer of CIBC, and financed the purchase of shrimp from Thailand Fisheries through a credit facility arranged with the Bank. Upon arrival in the United States, the shrimp were stored in large warehouses where they awaited purchase from various Sam’s Club outlets. Payment was to be made under letters of credit upon presentation to CIBC of purchase orders and receipts showing that the shrimp had been taken down by Sam’s Club.
Although Thai Fisheries had not been paid for all of the shrimp it supplied under the letters of credit, the proceeds of sale from the shrimp were used by Robertson and the Bank to reduce the Robertson line of credit that had been arranged to finance the trade transaction.
Thai Fisheries argued that CIBC and Robertson colluded to reduce Robertson’s line of credit – and therefore CIBC’s exposure – by arranging for shrimp to be sold without documentation from Sam’s Club and then relying on non-compliance with the letters of credit to refuse payments, while at the same time directing the monies received to reduce Robertson’s overdraft instead of ensuring that the monies were used to pay Thai Fisheries under the letters of credit.
CIBC argued that it did nothing improper, that it complied with the provisions of the letters of credit, which were not honoured because the requisite documentation was not presented, and that Thai Fisheries knowingly ran the risk of this eventuality when it accepted the letters of credit.
The trial judge ruled in favour of Thai Fisheries and granted judgment in its favour in the amount of $10,381,035 together with pre-judgment interest and costs. The court of Appeal dismissed the appeal.
CIBC raised one defence only: Thai Fisheries failed to comply with its obligation imposed by the special conditions in the Letters of Credit because receipts from Sam’s Club, through Robertson, were never delivered to CIBC. Since letters of credit must be strictly construed the delivery of the receipts from Sam’s Club was a pre-condition to payment. No receipts were provided for the shrimp in question, and therefore CIBC was not liable to pay.
The Court of Appeal held that CIBC was not entitled to rely upon the defence of non-compliance because:
(a) CIBC knowingly contributed to, or acquiesced in, the circumstances that undermined the prospect of strict compliance with the Letter of Credit, then used that non-compliance to justify the refusal of payment. It did so in collaboration with its customer, Robertson, in order to ensure that the proceeds of sale of the shrimp sold under the Letters of Credit were used to reduce the Bank’s exposure on the Robertson line of credit without corresponding payments being made to Thai Fisheries under the Letters of Credit. This conduct was either a direct breach of the principle of autonomy underlying letter of credit transactions or a breach of CIBC’s implied duty of good faith not to act in a manner meant to defeat or eviscerate the purpose of the Letters of Credit, On either scenario CIBC, as issuer of the Letters of Credit, was precluded from raising the defence of non-compliance.
(b) CIBC failed in its obligation to give timely notice of dishonour to Thai Fisheries when it held back on notifying the seller for more than a year that no receipts would be forthcoming and that the Letters of Credit would be cancelled. In doing so, CIBC placed Thai Fisheries in a position where it reasonably believed that the Letters of Credit would be honoured when the problems with the receipts had been resolved. Consequently, Thai Fisheries took no steps to protect itself by seeking return of the shrimp until it was too late and the shrimp had all been sold.
Regards,
Blair
Monday, September 21, 2009
Bell, Telus ordered to give subscribers credits
The Supreme Court of Canada released a recent judgment that provided a much needed boost to many Canadians. The Court upheld a decision of the CRTC that required carriers such as Bell Canada to give their subscribers credits or reduce their rates.
In May of 2002, the CRTC, in the exercise of its rate-setting authority, established a formula to regulate the maximum prices to be charged for certain services offered by carriers such as Bell Canada (the "Price Caps Decision"). Under the formula established by the Price Caps Decision, any increase in the price charged for services in a given year was limited to an inflationary cap, less a productivity offset to reflect the low degree of competition in the marketplace. The CRTC ordered carriers to establish deferral accounts as separate accounting entries in their ledgers to record amounts representing the difference between the rates actually charged and those otherwise determined by the formula.
In December of 2003, Bell Canada sought approval from the CRTC to use the balance in its deferral account to expand high-speed broadband internet services in remote and rural communities. After public consultation, the CRTC decided that the deferral account should be used to improve accessibility for individuals with disabilities and for broadband expansion. Any surplus amounts were to be distributed to residential subscribers either through a one time credit or through rate reductions. This was known as the "Deferral Accounts Decision".
Bell Canada appealed the order of giving one time credits. The Consumer Association of Canada and the National Anti-Poverty Organization appealed the decision that funds be used for broadband expansion. The Federal Court of Appeal dismissed the appeals finding that the Price Caps Decision always contemplated that the use of the deferral accounts would be subject to the CRTC's directions and that the CRTC was acting within its mandate. Telus Communications Inc. joined Bell Canada in appealing this decision to the Supreme Court of Canada.
The Supreme Court unanimously dismissed the appeal. It held that the CRTC's decisions were reasonable based on Canadian telecommunications policy objectives. The CRTC did exactly what it was mandated to do under the Telecommunications Act. It had the statutory authority to set just and reasonable rates, to establish deferral accounts, and to direct the disposition of the funds in those accounts. It was obliged to do so in accordance with the telecommunications policy objectives set out in the legislation and to balance and consider a wide variety of objectives and interests. The Supreme Court held that the CRTC did so in a reasonable way, both in ordering subscriber credits and in approving the use of the funds for broadband expansion.
Regards,
Blair
In May of 2002, the CRTC, in the exercise of its rate-setting authority, established a formula to regulate the maximum prices to be charged for certain services offered by carriers such as Bell Canada (the "Price Caps Decision"). Under the formula established by the Price Caps Decision, any increase in the price charged for services in a given year was limited to an inflationary cap, less a productivity offset to reflect the low degree of competition in the marketplace. The CRTC ordered carriers to establish deferral accounts as separate accounting entries in their ledgers to record amounts representing the difference between the rates actually charged and those otherwise determined by the formula.
In December of 2003, Bell Canada sought approval from the CRTC to use the balance in its deferral account to expand high-speed broadband internet services in remote and rural communities. After public consultation, the CRTC decided that the deferral account should be used to improve accessibility for individuals with disabilities and for broadband expansion. Any surplus amounts were to be distributed to residential subscribers either through a one time credit or through rate reductions. This was known as the "Deferral Accounts Decision".
Bell Canada appealed the order of giving one time credits. The Consumer Association of Canada and the National Anti-Poverty Organization appealed the decision that funds be used for broadband expansion. The Federal Court of Appeal dismissed the appeals finding that the Price Caps Decision always contemplated that the use of the deferral accounts would be subject to the CRTC's directions and that the CRTC was acting within its mandate. Telus Communications Inc. joined Bell Canada in appealing this decision to the Supreme Court of Canada.
The Supreme Court unanimously dismissed the appeal. It held that the CRTC's decisions were reasonable based on Canadian telecommunications policy objectives. The CRTC did exactly what it was mandated to do under the Telecommunications Act. It had the statutory authority to set just and reasonable rates, to establish deferral accounts, and to direct the disposition of the funds in those accounts. It was obliged to do so in accordance with the telecommunications policy objectives set out in the legislation and to balance and consider a wide variety of objectives and interests. The Supreme Court held that the CRTC did so in a reasonable way, both in ordering subscriber credits and in approving the use of the funds for broadband expansion.
Regards,
Blair
Friday, September 4, 2009
Supreme Court of Canada to hear Khadr Appeal
Omar Khadr, a Canadian citizen, was taken prisoner in Afghanistan when he was 15 years old and has been detained by U.S. Forces since 2002 at Guantanamo Bay, Cuba, where he is currently facing murder and other terrorism-related charges. During his detention, Mr. Khadr was given no special status as a minor. He was not allowed to communicate with anyone outside Guantanamo Bay until November 2004, when he met with legal counsel for the first time. The Canadian Government has asked, through diplomatic channels, for consular access and other assurances, but it is its policy not to request repatriation until the conclusion of the prosecution.
In 2003, Canadian officials questioned Mr. Khadr, still a minor, at Guantanamo Bay, with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities. In 2006, after formal charges were laid against him, Mr. Khadr sought disclosure in Canada of, notably, the records of the interviews conducted at Guantanamo Bay. The S.C.C. ordered disclosure. After the information was disclosed, it became clear that when the officials interviewed Mr. Khadr, they were aware he had been subjected to a form of sleep-deprivation to make him more amenable and willing to talk.
Mr. Khadr asked the Canadian Government to repatriate him. He sought judicial review of the policy and decision of the Canadian Government not to seek his repatriation. The Federal Court granted the application for judicial review. The C.A. dismissed the appeal.Prime Minister of Canada, Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr (F.C.A., August 14, 2009) (33289) "Granted Without Costs. The application for leave to appeal and the motion to stay the order of the Federal Court of Appeal and to expedite the hearing of the appeal are granted without costs. The appeal is to be heard on November 13, 2009, and the schedule for serving and filing the material and any application for leave to intervene shall be set by the Registrar.
Regards,
Blair
In 2003, Canadian officials questioned Mr. Khadr, still a minor, at Guantanamo Bay, with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities. In 2006, after formal charges were laid against him, Mr. Khadr sought disclosure in Canada of, notably, the records of the interviews conducted at Guantanamo Bay. The S.C.C. ordered disclosure. After the information was disclosed, it became clear that when the officials interviewed Mr. Khadr, they were aware he had been subjected to a form of sleep-deprivation to make him more amenable and willing to talk.
Mr. Khadr asked the Canadian Government to repatriate him. He sought judicial review of the policy and decision of the Canadian Government not to seek his repatriation. The Federal Court granted the application for judicial review. The C.A. dismissed the appeal.Prime Minister of Canada, Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr (F.C.A., August 14, 2009) (33289) "Granted Without Costs. The application for leave to appeal and the motion to stay the order of the Federal Court of Appeal and to expedite the hearing of the appeal are granted without costs. The appeal is to be heard on November 13, 2009, and the schedule for serving and filing the material and any application for leave to intervene shall be set by the Registrar.
Regards,
Blair
Tuesday, July 21, 2009
Parent Corporation Liable for Debt of Subsidiary
In a recent decision (City of Guelph v. Super Blue Box Recycling Corp.) the Ontario Court of Appeal held that a parent corporation was liable to indemnify a party who entered into a contract with the subsidiary corporation even though the parent was not a party to the contract. Eastern Power Limited ("Eastern") is a company that conducts laboratory testing for a technology that transforms municipal solid waste into recyclable products. Eastern was looking for a municipal partner willing to demonstrate the new technology and where it could build a demonstration plant in order to take the technology to the next step and show that it was workable and economically viable. The City of Guelph was interested in becoming a partner because it had a wet-dry facility that could accommodate Eastern's proposed plant.
Eastern made a formal proposal to the City and after a period of negotiation, persuaded Guelph to enter into an agreement with Eastern's wholly-owned subsidiary, Super Blue Box Recycling Corp. ("Super Blue"). Super Blue held the patents for the technology in question but otherwise had no assets.
Guelph and Super Blue subsequently entered into an agreement which contained a lease granting Super Blue an interest to the site on which the facility was to be built and which set out the respective rights and obligations of Guelph and Super Blue with respect to the project. Eastern was not a party to the agreement, however its proposal to the City contained an undertaking that Eastern would indemnify Guelph against liability that may arise as a result of the pilot demonstration project.
A dispute arose between Guelph and Super Blue as to whether the automatic three year extension in the agreement was triggered in January of 2000 leading to a termination of the agreement in January of 2003. The trial judge held in favour of the City.
The Court of Appeal considered, among other things, whether Eastern would be required to indemnify the City even though Eastern was not a party to the agreement and the parties had deliberately excluded a guarantee from Eastern in the agreement. The Court of Appeal accepted the trial judge's view that Eastern was "involved in the indemnity undertaking through its involvement in a larger transaction". In effect, Eastern asked the City to accept its proposal and enter into an agreement with its subsidiary to put the proposal into effect. In exchange, Eastern held out that it would give substance to the proposal and that the City would be indemnified from all costs and liabilities associated with the project. The City accepted the proposal by entering into the agreement with Super Blue.
The Court of Appeal held that these circumstances were sufficient to create an offer, acceptance and consideration to make the undertaking to indemnify enforceable even though Eastern was not a party to the agreement.
Regards,
Blair
Eastern made a formal proposal to the City and after a period of negotiation, persuaded Guelph to enter into an agreement with Eastern's wholly-owned subsidiary, Super Blue Box Recycling Corp. ("Super Blue"). Super Blue held the patents for the technology in question but otherwise had no assets.
Guelph and Super Blue subsequently entered into an agreement which contained a lease granting Super Blue an interest to the site on which the facility was to be built and which set out the respective rights and obligations of Guelph and Super Blue with respect to the project. Eastern was not a party to the agreement, however its proposal to the City contained an undertaking that Eastern would indemnify Guelph against liability that may arise as a result of the pilot demonstration project.
A dispute arose between Guelph and Super Blue as to whether the automatic three year extension in the agreement was triggered in January of 2000 leading to a termination of the agreement in January of 2003. The trial judge held in favour of the City.
The Court of Appeal considered, among other things, whether Eastern would be required to indemnify the City even though Eastern was not a party to the agreement and the parties had deliberately excluded a guarantee from Eastern in the agreement. The Court of Appeal accepted the trial judge's view that Eastern was "involved in the indemnity undertaking through its involvement in a larger transaction". In effect, Eastern asked the City to accept its proposal and enter into an agreement with its subsidiary to put the proposal into effect. In exchange, Eastern held out that it would give substance to the proposal and that the City would be indemnified from all costs and liabilities associated with the project. The City accepted the proposal by entering into the agreement with Super Blue.
The Court of Appeal held that these circumstances were sufficient to create an offer, acceptance and consideration to make the undertaking to indemnify enforceable even though Eastern was not a party to the agreement.
Regards,
Blair
Monday, July 6, 2009
Hunting at night an offence despite aboriginal Treaty rights
In R. v. Jacob, aboriginal defendants were hunting moose from a van on a gravel road at night. They were charged with hunting at night contrary to a provision of the Fish and Wildlife Conservation Act, 1997 ("Act") and one of them was also charged with discharging a firearm across a road contrary to another provision of the Act. The Justice of the Peace before whom the trial was heard rejected the defendants argument that they had a defence to the charges because they were exercising their right to hunt under Treaty 9 at the relevant time. They were convicted and their conviction was affirmed by the summary conviction appeal judge. They appealed their convictions further to the Ontario Court of Appeal.
The Court of Appeal dismissed their appeal and upheld the convictions on the following grounds:
The Court held that section 17(1)(e) of the Act makes it an offence to "discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic". In order to establish that the land in question is a "right of way for public vehicular traffic" the Crown is not required to provide that the provincial government or someone else with legal authority has granted the public the right to use the land by way of dedication or other legal process. One of the purposes of section 17(1)(e) is to prevent members of the public who are travelling in vehicles from the dangers arising from the discharge of firearms. That purpose can best be achieved by interpreting the phrase "a right of way for public vehicular traffic" broadly so as to protect member of the public driving on all lands that are open to public use in vehicles. There is evidence in this case that the road was a roadway used by the public. Accordingly, the Court held that the defendant was properly convicted of the offence under section 17(1)(e) of the Act.
The Court further held that the aboriginal right to fish and hunt in Treaty 9 is subject to an exception for "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". The test for determining whether lands are "taken up" is whether the use being made of the land is visibly incompatible with the exercise of the treaty right. Whether or not land has been taken up is a question of fact and must be resolved in a case-by-case basis. Hunting on the road in question in this case was visibly incompatible with the use to which the road had been put for many years. The Court held that it was a well-established primary haul road used by both lumber company employees and the public. Roadways used by the public are incompatible with hunting. The defendants knew about the uses to which the road was put. As a result, the Court found that they were properly convicted of hunting at night.
Regards,
Blair
The Court of Appeal dismissed their appeal and upheld the convictions on the following grounds:
The Court held that section 17(1)(e) of the Act makes it an offence to "discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic". In order to establish that the land in question is a "right of way for public vehicular traffic" the Crown is not required to provide that the provincial government or someone else with legal authority has granted the public the right to use the land by way of dedication or other legal process. One of the purposes of section 17(1)(e) is to prevent members of the public who are travelling in vehicles from the dangers arising from the discharge of firearms. That purpose can best be achieved by interpreting the phrase "a right of way for public vehicular traffic" broadly so as to protect member of the public driving on all lands that are open to public use in vehicles. There is evidence in this case that the road was a roadway used by the public. Accordingly, the Court held that the defendant was properly convicted of the offence under section 17(1)(e) of the Act.
The Court further held that the aboriginal right to fish and hunt in Treaty 9 is subject to an exception for "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". The test for determining whether lands are "taken up" is whether the use being made of the land is visibly incompatible with the exercise of the treaty right. Whether or not land has been taken up is a question of fact and must be resolved in a case-by-case basis. Hunting on the road in question in this case was visibly incompatible with the use to which the road had been put for many years. The Court held that it was a well-established primary haul road used by both lumber company employees and the public. Roadways used by the public are incompatible with hunting. The defendants knew about the uses to which the road was put. As a result, the Court found that they were properly convicted of hunting at night.
Regards,
Blair
Friday, July 3, 2009
Denial of hearing upheld by Court of Appeal
The Ontario Court of Appeal recently ruled on the issue of whether a not-for-profit professional regulatory corporation had dealt fairly with one of its members against whom a complaint had been made.
In an appeal brought by the Appraisal Institute of Canada, the entity that regulates and sets standards of practice for real estate appraisers, the Court of Appeal overturned a trial judgment that awarded damages to a member of the Institute on the basis that its discipline committee had not dealt fairly with him. In the case, a hearing of the institute's adjudicating committee determined that certain charges had been proven against the member. The committee imposed a private reprimand, ordered the member to re-do the appraisal in issue in compliance with current standards and assessed costs of $2,500 against him.
The member appealed to the Ontario Superior Court of Justice and succeeded at trial. The trial judge found that the Institute had an implied contractual obligation to treat the member fairly in conducting its discipline process. The trial judge found that the process had become fatally flawed at the investigating committee stage because the member had been denied a right to a hearing.
The Court of Appeal overturned the decision for the following reasons:
1. The implied contractual obligation of fairness must be informed by the regulation which the Institute's by-laws empower it to make governing the investigating stage of the discipline process. In other words, the regulation sets out how members can expect to be treated. In this case, the regulation provided that the investigating committee was not required to hold a hearing.
2. The investigating committee could impose no sanction or substantive consequence on the member. It could do no more than cause a hearing before the adjudicating committee. As a result, the requirements of the duty to treat the member fairly at the investigating stage were extremely minimal. The member was afforded the opportunity to know what the complaint was against him and to respond in writing about the questions the complaint raised. The Court held that fairness requires no more than that.
The Court concluded that the absence of a hearing before the investigating committee did not deprive the member of any element of procedural fairness.
Regards,
Blair
In an appeal brought by the Appraisal Institute of Canada, the entity that regulates and sets standards of practice for real estate appraisers, the Court of Appeal overturned a trial judgment that awarded damages to a member of the Institute on the basis that its discipline committee had not dealt fairly with him. In the case, a hearing of the institute's adjudicating committee determined that certain charges had been proven against the member. The committee imposed a private reprimand, ordered the member to re-do the appraisal in issue in compliance with current standards and assessed costs of $2,500 against him.
The member appealed to the Ontario Superior Court of Justice and succeeded at trial. The trial judge found that the Institute had an implied contractual obligation to treat the member fairly in conducting its discipline process. The trial judge found that the process had become fatally flawed at the investigating committee stage because the member had been denied a right to a hearing.
The Court of Appeal overturned the decision for the following reasons:
1. The implied contractual obligation of fairness must be informed by the regulation which the Institute's by-laws empower it to make governing the investigating stage of the discipline process. In other words, the regulation sets out how members can expect to be treated. In this case, the regulation provided that the investigating committee was not required to hold a hearing.
2. The investigating committee could impose no sanction or substantive consequence on the member. It could do no more than cause a hearing before the adjudicating committee. As a result, the requirements of the duty to treat the member fairly at the investigating stage were extremely minimal. The member was afforded the opportunity to know what the complaint was against him and to respond in writing about the questions the complaint raised. The Court held that fairness requires no more than that.
The Court concluded that the absence of a hearing before the investigating committee did not deprive the member of any element of procedural fairness.
Regards,
Blair
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