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
Monday, September 21, 2009
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
Thursday, June 18, 2009
Supreme Speed
Statistics show that the Supreme Court of Canada decided cases and leave to appeal applications faster last year than at any time in the past decade. However, the number of completed leave to appeal applications submitted to the Court for decision in 2008 dropped dramatically by 19% to 509.
The Court reduced the time that it took to decide leave to appeal applications to an average of 3 months, the fastest time in at least 10 years. The court also heard and decided appeals at record speed - an average total of less than 17 months between the filing and the leave to appeal application and final judgment.
The downside of these indicators is that it appears to be getting harder for litigants to have their cases heard by the Supreme Court. Over the past 10 years, the percentage of leave applications granted by the Court has fluctuated between 11% and 15%. Based on trends so far in 2009, it appears that the Court will hear about 70 appeals, well below the average of 82 appeals it heard annually in the previous decade. Expert Court watchers say that the number of interesting and important applications has not changed in any respect over the past 3 decades - what has changed is the threshold - it is much harder to get leave now than ever before.
In respect of the types of cases the Court heard in 2008, 39% were criminal, 10% were charter (civil), 7% were charter (criminal). Litigators like me should take note that commercial law cases heard by the court comprised only 6% of its docket.
As to the appeals heard by the Supreme Court of Canada by province of origin, fully 20% originated from the province of British Columbia, 17% from Quebec and 12% from the Federal Court of Appeal. Only 11% of the Court's cases originated from the province of Ontario.
Stay tuned for more news on this front.
Regards,
Blair
The Court reduced the time that it took to decide leave to appeal applications to an average of 3 months, the fastest time in at least 10 years. The court also heard and decided appeals at record speed - an average total of less than 17 months between the filing and the leave to appeal application and final judgment.
The downside of these indicators is that it appears to be getting harder for litigants to have their cases heard by the Supreme Court. Over the past 10 years, the percentage of leave applications granted by the Court has fluctuated between 11% and 15%. Based on trends so far in 2009, it appears that the Court will hear about 70 appeals, well below the average of 82 appeals it heard annually in the previous decade. Expert Court watchers say that the number of interesting and important applications has not changed in any respect over the past 3 decades - what has changed is the threshold - it is much harder to get leave now than ever before.
In respect of the types of cases the Court heard in 2008, 39% were criminal, 10% were charter (civil), 7% were charter (criminal). Litigators like me should take note that commercial law cases heard by the court comprised only 6% of its docket.
As to the appeals heard by the Supreme Court of Canada by province of origin, fully 20% originated from the province of British Columbia, 17% from Quebec and 12% from the Federal Court of Appeal. Only 11% of the Court's cases originated from the province of Ontario.
Stay tuned for more news on this front.
Regards,
Blair
Wednesday, May 27, 2009
Limitation Act amended for Demand Promissory Notes
Many in the Ontario business community were surprised when the Ontario Court of Appeal held in 2006 that the limitation period for demand promissory notes began to run as soon as the note was issued and not following a default after a demand for payment. This meant that demand notes issued after January 1, 2004 (when the basic limitation period was changed from 6 years to 2 years) became statute-barred 2 years from the date they were issued unless the debtor paid interest or principal or acknowledged the debt in writing. In those cases, the clock on the limitation period restarted after that event.
However, there were many situations, where payments of interest or principal would not be made for many years. For example, in the case of Hare v. Hare, a mother was unable to sue her son on a demand note when her statement of claim was issued more than 6 years after her son's last payment, although it was only a few months after she had demanded payment.
As a result, lawyers were forced to revise their demand notes to draft around the Court's decision. But such creative drafting did not resolve the problem that existed with notes that were already outstanding. As a result of intensive lobbying by various groups, the Ministry of the Attorney General enacted amendments to the Limitations Act which took effect on November 27, 2008.
The amendments make 2 significant changes directed at the decision in Hare. First, for demand obligations, the 2 year limitation period starts to run on "the first day on which there is a failure to perform the obligation, once a demand for the performance is made".
Second, the amendments apply "in respect of every demand obligations created on or after January 1, 2004" thus giving the amendments retroactive effect to the date that the new Act came into force. Now, until there is a default following a demand for payment, the limitation period doesn't start to run.
Regards,
Blair
However, there were many situations, where payments of interest or principal would not be made for many years. For example, in the case of Hare v. Hare, a mother was unable to sue her son on a demand note when her statement of claim was issued more than 6 years after her son's last payment, although it was only a few months after she had demanded payment.
As a result, lawyers were forced to revise their demand notes to draft around the Court's decision. But such creative drafting did not resolve the problem that existed with notes that were already outstanding. As a result of intensive lobbying by various groups, the Ministry of the Attorney General enacted amendments to the Limitations Act which took effect on November 27, 2008.
The amendments make 2 significant changes directed at the decision in Hare. First, for demand obligations, the 2 year limitation period starts to run on "the first day on which there is a failure to perform the obligation, once a demand for the performance is made".
Second, the amendments apply "in respect of every demand obligations created on or after January 1, 2004" thus giving the amendments retroactive effect to the date that the new Act came into force. Now, until there is a default following a demand for payment, the limitation period doesn't start to run.
Regards,
Blair
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