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The 2010 Year in Review.

III FAMILY LAW

i. Division of Property

Phillips v Phillips

In Phillips v Phillips, (192) the Saskatchewan Court of Appeal considered several provisions of the province's Family Property Act (193) ("the Act") regarding the distribution of family property on marriage breakdown. The appellant husband appealed the trial judge's decision to order an unequal distribution of the family home and other family property on the basis that he had gambled away a substantial amount of the family property. He had squandered $156,000 over 10 years, which included 60-75% of his pay and nearly all of his retirement assets, forcing the respondent wife to singlehandedly meet the household's financial obligations. (194)

Section 11 of the Act permits an unequal distribution where it would be unfair and inequitable to make an equal distribution having regard to several enumerated factors, one of which is the fact that a spouse has "dissipated" family property. Similarly, under section 11 the family home may be to be divided unequally if an equal split would be unfair and inequitable based on an "extraordinary circumstance." (195)

A unanimous Court of Appeal held that the appellant's squandering was sufficient to jeopardize the financial security of the household and meet the test for "dissipation" of family property under the Act, even though he primarily gambled away his own assets. (196) The Court further held that the high magnitude of the appellant's gambling expenses relative to his income and the resulting financial consequences to the respondent constituted an extraordinary circumstance. (197) It held that in the context of gambling, a trial court should calculate the value of the dissipation by subtracting an "appropriate entertainment expense" from the total sum gambled by a spouse, as a reasonable amount of legal gambling is a valid form of entertainment. (198)

The Court also considered the proper limitation period for claims made under sections 11 and 11 of the Act. The Court held that the limitation period of two years, set out in section 28, applies to these claims, and thereby resolved a conflict in the prior case law on this issue. Spouses may thus only claim dissipation or wasteful giving of family property for the two-year period prior to the filing of a property division application. However, Klebuc CJS, writing for the Court, commented in obiter dicta that a possible exception to this limitation period may exist if the dissipation or giving was unknown to the claimant during the period and not reasonably discoverable. (199)

ii. Jurisdiction

Shortridge-Tsuchiya v Tsuchiya

In Shortridge-Tsuchiya v Tsuchiya, (200) the British Columbia Court of Appeal considered the interpretation and application of Part 3 of the Family Relations Act (FRA) (201) in circumstances where a child in the joint care of his parents has been removed by one parent from a jurisdiction that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. (202) Justice Prowse, writing for the majority, found that the trial judge was incorrect in concluding that he did not have jurisdiction to make an order for custody and parenting rights under section 44 of the FRA. However, the trial judge was correct in finding that if he did have jurisdiction, he should decline it pursuant to section 46 of the FRA in favour of Japan.

The appellant mother, a Canadian who was a permanent resident of Japan, married the respondent father, a Japanese citizen. They had a son and lived in Japan until their marriage broke down. In 2008, while engaged in mandatory mediation sessions, a precursor to divorce proceedings in Japan, the appellant brought the child to Canada without telling the respondent. The child was a dual Japanese-Canadian citizen and had been primarily residing in Japan. (203) The trial judge ordered that pursuant to section 47 of the FRA, the appellant was to have interim custody of the child until the matter could be resolved in Japan. The judge stayed his order that the appellant should return to Japan with the child until the respondent paid the appellant reasonable travel expenses for the return trip as well as a deposit for the mother and child's reasonable living expenses during the estimated two years the case might take to conclude in Japan. (204)

Justice Prowse found that the trial judge erred in treating section 44 of the FRA as if it were a jurisdiction-conferring provision. Section 44(b), which concerns cases in which the child is "not habitually resident in British Columbia" contains six conditions, which if all are present, require the Court to exercise jurisdiction to make a custody or access order. However, if the situation does not meet all six conditions, the court may still have jurisdiction. (205) Courts must read this provision along with section 46, which provides that a court may decline to exercise its jurisdiction if there is a more appropriate location for the matter to be heard. (206) Both the majority and dissent found that this is to be interpreted in line with section 11 of the Court Jurisdiction and Proceedings Transfer Act (207) (CJPTA), which codifies the doctrine of forum non conveniens in British Columbia. (208)

The majority held that the trial judge's analysis of section 3 of the FRA encompassed the considerations in section 11 of the CJPTA. (209) Since there was no conclusive evidence that cultural differences would keep Japan from administering due process in the dispute, Justice Prowse found no reason to interfere with the trial judge's decision to decline jurisdiction pursuant to section 46. (210) Justice Rowles, in dissent, held that such evidence would have been required to disprove the assumption that failure to sign the Hague Convention is decisive in the section 11 analysis of whether or not Japan would be a better forum for the dispute. (211)

The Supreme Court of Canada denied leave to appeal on July 8, 2010. (212) On March 18, 2013, the British Columbia legislature repealed the Family Relations Act and replaced it with the Family Law Act. (213)

iii. Child Support

Greene v Greene

In Greene v Greene, (214) the British Columbia Court of Appeal considered (1) whether access costs should offset increased spousal income when varying child support payments and (2) whether a consent agreement creates a contract between the parties. Mr. Greene's income had increased by 60 percent during the period between the signing of the consent agreement and the mother's action to increase support. (215)

Section 10(2)(b) of the Federal Child Support Guidelines (216) ("Guidelines") provided special support rules applicable if "undue hardship" will be imposed on the child due to parental access costs. Justice Prowse, writing for the court, held that access costs should not be included in calculating child support payments unless "special provisions" under section 17(6.2) of the FRA apply. The provisions did not apply in this case, so the Court could not offset access costs from child support payments. (217) Justice Prowse considered that the new section 10 of the Guidelines might support application of section 16(6) of the FRA, which relates to mobility cases and access costs. However, Mr. Greene did not found his claim on this basis, so the Court did not decide the issue. (218)

Justice Prowse held that Mr. Greene could not rely on the consent agreement with the mother in order to justify a smaller child support obligation. This would convert child support provisions into a contractual right between the parents when, in fact, child support is the right of the children. (219)

As was noted above, on March 18, 2013, the British Columbia Legislature replaced the Family Relations Act with the Family Law Act. (220)

IV ADMINISTRATIVE LAW

i. Procedural Fairness

Heron Bay Investments Ltd v Her Majesty the Queen

In Heron Bay Investments Ltd v Her Majesty the Queen, (221) the Federal Court of Appeal ruled that the Tax Court judge breached the rules of procedural fairness and ordered a retrial by a different judge. (222) Justice Sharlow, writing for a unanimous Court, pointed to the judge's intervention in the questioning of witnesses as giving rise to the reasonable apprehension of bias. (223)

The appellant, Heron Bay Investments Inc ("Heron Bay") is a member of the Conservancy Group of real estate development corporations. It made a non-recourse loan to a fellow member of the Conservancy Group so that it could purchase property. Section 20(1)(1)(ii) of the Income Tax Act allows for the deduction of a "doubtful" loan, where "doubtful" is defined as reasonable doubt that the loan would be repaid. (224) Heron Bay considered the loan doubtful since the purchase price was greater than the value of the property purchased and deducted the loan. The Minister disallowed the deduction. (225) Heron Bay appealed to the Tax Court where the judge concluded that the loan did not meet two of the criteria for doubtfulness. (226) Heron Bay appealed to the Federal Court of Appeal.

Justice Sharlow found that Heron Bay was not deprived of procedural fairness when the Tax Court judge referred to authorities not cited by either of the parties without allowing the parties to make submissions on them. (227) In her view, the judge was permitted to refer in his deliberations to cases not cited by either party and not referred to in his reasons. (228) The judge was also not precluded from referring to cases or to excerpts of articles not cited by either party in his reasons if they were relevant to a legal issue raised by a party. (229) If, however, the judge had used those authorities to introduce a principle of law not raised by either party expressly or by necessary implication, or had used them to take the case on a different path, it might have constituted a breach of procedural fairness. (230)

Justice Sharlow agreed that a breach of procedural fairness was committed when the Tax Court judge introduced section 69 of the Act into his reasons without allowing Heron Bay an opportunity to make submissions on it. Although the judge had violated the rules of procedural fairness on this point, Justice Sharlow found that a retrial was not justified because the reference was obiter and did not result in a detriment to Heron Bay. (231)

Finally, Heron Bay argued the Tax Court judge had intervened extensively in the questioning of a witness, giving rise to a reasonable apprehension of bias. Excessive intervention by a trial judge may give rise to a reasonable apprehension of bias and warrant a new trial: James v Canada, (232) R v Brouillard, (233) and Chippewas of Mnjikaning First Nation v Ontario (Minister of Native Affairs). (234) Justice Sharlow noted that while no allegations of actual bias were made, nor did the record disclose any evidence of such, the actions of the judge made it appear as though he had taken over questioning. (235) The judge made a negative assessment based on the answers to his own questions on a critical issue. (236) Although Heron Bay's counsel did not object to the interventions during witness examination, this fact was outweighed by the judge's misquotation of the transcript in his judgment. (237) In his reasons, the judge removed a potentially material portion of the witness's answer and deleted his own questions which had the effect of hiding that the judge had himself extracted the information. (238)

ii. Immigration law

Canada v. Zeng

Canada (Minister of Citizenship and Immigration) v Zeng (239) addressed the issue of "asylum shopping," where an individual seeks protection in one country from alleged persecution, torture, or cruel and unusual punishment in their home country, while entitled to status in a "safe" third country. The respondents were persecuted in China for violating the one-child rule. They were entitled to status in Chile, but their flight had a layover in Canada where they remained and claimed refugee status. The issue in the appeal was whether their legal status in Chile was relevant to whether they should be entitled to refugee status in Canada. They argued that although they had permanent resident status in Chile, there was a risk this would expire as they had been outside that country for more than one year. However, they had not applied to have their status extended. The Immigration and Refugee Board ("the Board") denied their application on the basis that Article 1E of the United Nations Convention Relating to the Status of Refugees (240) "precludes the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country." (241)

Justice Layden-Stevenson, for a unanimous Court of Appeal, held that when an individual is applying for refugee status, the Board can consider status in a third country throughout his or her time in Canada to determine whether he or she should be excluded under Article 1E. (242) The Court of Appeal also found that the Board may consider the steps the individual took or did not take to cause or fail to prevent the loss of status in the third country. (243) However, the claimant's failure to acquire status to which he or she had access in another nation does not automatically defeat the claim. Rather, the Board must consider and balance a variety of factors including "the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts." (244) Applying these considerations, Layden-Stevenson JA allowed the appeal from the Federal Court and upheld the decision of the Board. (245)

League for Human Rights of B'Nai Brith Canada v Odynsky

In League for Human Rights of B'Nai Brith Canada v Odynsky, (246) the Federal Court of Appeal held that the Governor in Council has broad discretion under subsection 10(1) of the Citizenship Act to reject recommendations for revocation of citizenship made by the Minister of Citizenship and Immigration. (247) The Minister of Citizenship and Immigration recommended that the Governor in Council revoke the Canadian citizenship of two Ukrainians who misrepresented their activities when they immigrated to Canada. They had been members of the German forces during the World War II although they did not participate in atrocities or war crimes. The Governor in Council rejected the recommendations (248) and the appellants' application for judicial review failed. (249)

The plain language of the Citizenship Act does not appear to confer on the Governor in Council the discretion to review the Minister's recommendations. (250) However, for six reasons, the Court interpreted the statute to allow broad discretion. First, statutory language should not be read in isolation. (251) Second, the requirement that a report be prepared suggests a broader decision-making role than just date-setting for the Governor in Council. (252) Third, given the complexity of the Minister's submissions to the Governor in Council, it is illogical that it would have no role in the decision-making. (253) Fourth, the vesting of final authority in the Governor in Council indicates that Parliament intends for a thorough review of the decision by Cabinet. (254) Fifth, the importance of a revocation of citizenship suggests a broad role for the Governor in Council because of Cabinet's policy expertise. (255) Sixth, there is case law that suggests the existence of a wide discretion for the Governor in Council under subsection 10(1). (256)

This case clarified the role of the Governor in Council under subsection 10(1), an issue that had not previously been decided. It has potentially broad application to other statutes that vest final authority in the Governor in Council because it indicates that any vesting of authority in Cabinet, no matter how textually restricted, will be treated as a grant of full decision-making power.

iii. Human rights law

Canada (Prime Minister) v Khadr

Canada (Prime Minister) v Khadr (257) dealt with an application for a stay of enforcement. The respondent was captured by US forces in 2002 in Afghanistan at the age of fifteen, and subsequently charged with a number of offences, including murder, attempted murder, and conspiracy. The Supreme Court of Canada previously found that his section 7 Charter rights were breached when agents of the Canadian government questioned him while he was being detained at Guantanamo Bay and provided information obtained in those interviews to the American government. (258) However, the Court refused to mandate any specific section 24 remedy beyond declaratory relief. (259)

The government's response to this earlier ruling was to send a diplomatic note to the United States government requesting that the information provided by Canadian officials not be used in the prosecution. (260) The respondent applied for judicial review of this decision, and Justice Zinn of the Federal Court agreed that the government's response did not remedy the Charter breach and did not afford the respondent procedural fairness. (261) He then issued an extensive order requiring the government to provide the respondent with information regarding its decision and to accept submissions from the respondent regarding an appropriate remedy prior to making a final determination. (262) Justice Zinn retained jurisdiction to review or impose a remedy if the parties cannot agree. (263)

Following this decision, the government sought a stay of enforcement at the Federal Court of Appeal. The test for granting a stay of enforcement was established in RJR-MacDonald Inc v Canada (Attorney General): there must be a serious issue to be tried; it must be determined whether the applicant would suffer irreparable harm if the application was refused; and it must be assessed which of the parties would suffer greater harm from the granting or refusal of the remedy pending the full appeal (balance of convenience). (264) Chief Justice Blais found first that there were serious issues raised in the case, most notably the degree to which a court may supervise the Crown's execution of its prerogative in the area of foreign affairs. (265) This supervision "will result in improper interference by the Court in the conduct of foreign relations" and will result in irreparable harm since it "cannot be reversed if the appellants are successful on appeal nor be compensated by damages." (266) On the balance of convenience question, he emphasized that the government was only responsible for the harm flowing from the specific Charter breach--that is, the information provided to the American government--and not the overall harm potentially suffered by the respondent (a trial and the potential for imprisonment). (267) Given what he felt was a clear harm that would result from the courts usurping the executive's discretionary power in the area of foreign affairs and national security, and the ambiguous harm stemming from the Charter breach itself, Chief Justice Blais concluded that the balance of convenience favoured the government. (268) The Court thus allowed the motion, and suspended enforcement of the Federal Court's remedy pending completion of the full appeal. (269)

Workers' Compensation Board v British Columbia Human Rights Tribunal

This case considered whether the British Columbia Human Rights Tribunal (the "HRT") may decide to hear a human rights complaint even though the same issue has been adjudicated by another body. (270) The HRT agreed to hear a complaint alleging that the chronic-pain policy of the British Columbia Workers' Compensation Board ("WCB") is discriminatory, despite the fact that the Review Division of the WCB had previously held that it was not. (271) The complainants had originally sought to appeal the decision of the WCB to the Workers' Compensation Appeal Tribunal, but legislative changes stripped WCAT's jurisdiction to deal with complaints based on alleged violations of the Human Rights Code (272) ("the Code"), and so they applied to the HRT, who agreed to hear the complaint. The WCB alleged that this decision to hear the complaint failed to properly take into account the doctrines of res judicata, issue estoppel, collateral attack, and abuse of process. It further submitted that it raised a true jurisdictional issue that was subject to review on a standard of correctness. The chambers judge found for the WCB and quashed the HRT's decision. (273)

Justice Frankel, for a unanimous Court of Appeal, held that the legislature clearly intended to confer onto the HRT the jurisdiction to adjudicate a human rights complaint even though the same issue is raised before another body. This is evident from two provisions of the Code: section 25(2), which gives the Tribunal the discretion to defer dealing with a complaint filed with both it and another body until the outcome of the other proceeding is known, and section 27(1)(f), which allows it to dismiss a hearing that has already "been appropriately dealt with in another proceeding." (274) The Court interpreted these provisions as conferring a discretionary authority upon the HRT to either proceed with such a case or not, depending on whether it has been appropriately dealt with by the other body. (275) In this case, it was within the Tribunal's discretion to decide that the WCB had not dealt with the human rights issue appropriately and elect to conduct its own proceeding on the matter. (276)

Justice Frankel also held that the appropriate standard of review of a decision of the HRT regarding whether to hear a complaint is patent unreasonableness. (277) While consideration of general common law principles such as res judicata and abuse of process are usually subject to a correctness standard, such a standard does not take into consideration the legislative intent in the Code to allow the HRT discretion in determining whether or not to hear a matter that has already been decided by another body. (278) Rather than being directly applicable or determinative, these doctrines serve to inform what is ultimately an exercise of discretion. (279) Such a purely discretionary decision of the HRT must only be reviewable on a patent unreasonableness standard. (280)

The Supreme Court allowed an appeal of this decision in October 2011, and set aside the decision of the HRT. (281) It held that the Tribunal's exercise of discretion was based on irrelevant factors and therefore patently unreasonable. (282) Complainants should have applied for judicial review of the WCB's decision rather than bring new proceedings before the Tribunal. (283)

British Columbia (Ministry of Education) v Moore

In British Columbia (Ministry of Education) v Moore. (284) the British Columbia Court of Appeal considered the standard to apply in evaluating discrimination under section 8(1) of the BC Human Rights Code in the context of the education and equality rights of children with severe learning disabilities. Moore is a severely learning disabled (SLD) child who claimed that he faced discrimination in the provision of education services by his school district and the BC Ministry of Education. The program equipped to address Moore's disabilities was closed, and when no similar program was offered in the public school system, Moore's parents enrolled him in a private school. The BC Human Rights Tribunal found discrimination in this failure to adequately accommodate SLD children's disabilities. (285) On judicial review, the trial judge quashed the Tribunal's decision finding no discrimination occurred. (286) Moore appealed.

Justice Low, writing for the majority in the appellate court, applied the reasoning from Auton (Guardian ad Litem of) v British Columbia (Attorney General), (287) finding that Moore was "entitled to no more than a conscientious and reasonable attempt to identify his condition and to address his needs. That occurred in the present case." (288) Because the issue is the provision of special needs education, the correct comparator group is other special needs students who are not SLD. (289) The majority upheld the trial judge's decision that the Ministry practice was not discriminatory. (290)

In a lengthy dissent, Justice Rowles set out an analysis of the third part of the SCC's test governing human rights infringements as established in Ontario (Human Rights Commission) v Simpson-Sears Ltd. (291) She disagreed with the majority and held that the appropriate comparator in this case is "all students attending public school in the Province who do not require additional support and accommodation to do so." (292) Against this standard, she concludes that Moore faced discrimination. (293)

In November 2012, the Supreme Court of Canada allowed Moore's appeal. (294) The Court concluded that Moore had been denied meaningful access to educational programs that were necessary to address his disability, and that this amounted to discrimination. (295) The Court held that provision of education generally, not special education, was the "service" to which Moore was entitled under section 8(1) of the BC Human Rights Code. (296) The Court considered the appropriate comparator group and determined that Moore must be provided meaningful access to education to which all students in BC are entitled, not all special needs students. (297)

Ontario (Disability Support Program) v Tranchemontagne

In Ontario (Disability Support Program) v Tranchemontagne, (298) the Court of Appeal for Ontario adopted the test developed in R v Kapp (299) for determining equality under the Charter as the controlling test for discrimination under section 1 of the Ontario Human Rights Code (Code). (300) Alcoholics Robert Tranchemontagne and Norman Werbeski sought disability support payments. The impact of their alcoholism was so severe that it fell within section 4(1) of the Ontario Disability Support Program Act, 1997 (ODSPA). (301) However, section 5(2) expressly excludes those whose disability is solely due to dependence on chemically active substances. Their applications for disability support were denied, so they appealed to the Social Benefits Tribunal (SBT). The SBT found that section 5(2) violates section 1 of the Code as it infringes on the right to "equal treatment with respect to services without discrimination because of ... disability." The SBT based its analysis on the test set out in Law v Canada (Minister of Employment and Immigration) (302) for establishing a violation of section 15(1) of the Charter.

The Divisional Court proposed a revised post-Kapp test in which the complainant must only show a prima facie case of discrimination on a prohibited ground, before the burden shifts to the responding party to rebut the prima facie case on a balance of probabilities or show a statutory exemption. The Divisional Court dismissed the province's appeal by finding that the SBT had not erred in finding that Tranchemontagne had established discrimination contrary to section 1 of the Code.

The Ontario Court of Appeal rejected the Divisional Court's test because it diverges from the Kapp approach in three key ways. First, the Divisional Court's test did not require that the complainant prove that discrimination on a prohibited ground creates a disadvantage, a central element in the Kapp test. (303) Second, the test implied that it is "unnecessary for the claimant to show that the disadvantage perpetuates prejudice or stereotyping." (304) Third, the test "reverses the burden of proof by requiring the responding party to rebut a claim of discrimination;" however, in Kapp, the burden of proof to establish a disadvantage remains with the claimant. (305) The court clarified that the test in Kapp is controlling for claims of discrimination under section 15(1) of the Charter and equivalent provincial human rights legislation. Recognizing that the SBT did not have the benefit of the Kapp test, the court concludes nonetheless that the SBT's reasons meet the test, and upheld the SBT's decision that section 5(2) of the ODSPA violates section 1 of the Code. (306)

iv. Professional discipline

Leering v College of Chiropractors of Ontario

In Leering v College of Chiropractors of Ontario. (307) the Ontario Court of Appeal clarified that the fact that a sexual relationship predates a professional-patient relationship does not create an exception from the mandatory license revocation if a health care professional engages in sexual intercourse with a patient. (308) Vincent Leering, a chiropractor, had a sexual relationship with the complainant, although she began receiving treatments from him only after they had moved in together. He conducted the appointments in his office and billed the complainant regularly, so that she could make a claim on her insurance. After their relationship ended, she complained to the College of Chiropractors of Ontario ("the College"), which charged Leering with sexual abuse, pursuant to the Health Professions Procedural Code (309) ("the Code"). The Code requires a mandatory license revocation for at least five years if a health care professional has sexual intercourse with a patient. The Discipline Committee of the College convicted Leering, but the Divisional Court set aside this decision on the basis that the Committee should have considered that the care arose from a pre-existing spousal relationship. (310) If the care was incidental to an existing relationship, as the Court believed was the case, this would indicate that the power imbalance in the professional-patient relationship was not exploited to obtain consent to sexual activity. (311)

The Court of Appeal unanimously overturned this decision and reinstated the decision of the Discipline Committee. Justice Feldman noted that the offence of sexual abuse under the Code requires only two elements: a sexual relationship and a concurrent professional-patient relationship. (312) This zero-tolerance provision makes no exception for pre-existing spousal relationships between professionals and their patients. (313) Prior jurisprudence had held that the incidental medical care of a spouse was acceptable, (314) but the Divisional Court had incorrectly interpreted these cases as necessitating consideration of whether sexual activity subsequent to the care arose out of a spousal relationship. (315) Justice Feldman noted that the phrase 'incidental' does not mean that any medical care which arises from a spousal relationship is acceptable, but permits care of such an incidental nature that the spouse could not be considered a 'patient' of the professional. (316) In the case at bar, the frequency of treatments, their location (his office) and the expectation of payment indicate that the care Leering provided was not incidental. (317)

V LABOUR AND EMPLOYMENT LAW

i. Union discipline of members

Armstrong v International Brotherhood of Boilermakers

In Armstrong v International Brotherhood of Boilermakers (318) the Alberta Court of Appeal dealt with two provisions of the Alberta Labour Relations Code (319) ("the Code"), section 26(c), regarding the right of a union member to be represented by counsel at disciplinary hearings, and section 151, concerning a union's right to discipline a member for taking work with an employer who is not a party to the collective agreement. Armstrong took a management job without the permission of his union, in contravention of its constitution. The union initiated disciplinary proceedings against him for this breach, and informed him that while he could be represented by another union member at the hearing, he could not be represented by outside legal counsel. Armstrong did not attend the hearing and was fined and subsequently suspended from the union. He appealed to the Alberta Labour Relations Board ("the Board") on the basis that the union had violated section 26(c) of the Code, which gives union members the right to be represented by legal counsel at a disciplinary hearing.

The Board held that the union's communications on the subject of whether counsel could be present were immaterial given that Armstrong did not attend the hearing and so had not actually been denied the right to counsel. (320) This decision was reversed by the Court of Queen's Bench and was upheld by the Court of Appeal on the basis that the explicit misinformation provided by the union was a breach of section 26(c). A unanimous Court stated that while there is no positive obligation on the part of the union to inform members of their right to counsel, it "cannot explicitly mis-inform a member about those rights." (321) The Board should not have relied upon the union's assurance that it would have allowed counsel to be present if Armstrong had made such a request, as there was no way for Armstrong to know this. (322) The breach was also not merely a technical one, as Armstrong had decided not to attend in part because of the belief that it would be a "kangaroo court." (323)

The second issue concerned the applicability of section 151(i)(ii) of the Code, which restricts a union's right to discipline a member for taking work with an employer who is not a party to the collective agreement if the union fails to make reasonable alternative employment available within a reasonable time. (324) In this case, the Board had found that "reasonable alternative employment" did not require the union to provide work of comparable type or remuneration, but rather "alternate work under the collective agreement." (325) The union had in fact been able to provide comparable work for journeyman welders, and by taking a management job with another employer, Armstrong could therefore not benefit from the protection of section 151(i)(ii). (326) The Court upheld this ruling as reasonable and within the expertise of the Board. (327)

ii. Collective Agreements

Manitoba Association of Healthcare Professionals v Nor-Man Regional Health Authority Inc

Manitoba Association of Healthcare Professionals v Nor-Man Regional Health Authority Inc (328) considered the law of promissory estoppel as it applied to the failure of a union to question an employer's practice which was not in accordance with the collective agreement. An employee of Nor-Man submitted a grievance claiming that she was owed additional vacation pay on the basis that she began to accrue vacation entitlement when she became employed with the respondent on a casual basis rather than when she had become a part-time indefinite employee. The union argued that under the collective agreement, vacation benefits should accrue as soon as employment commences, although the union had never questioned the employer's practice of excluding casual time over five successive collective agreements. The arbitrator estopped the union from challenging the practice, stating that its failure to do so previously amounted to an implied agreement with the employer's interpretation. A judge dismissed the union's application for judicial review, finding that the arbitrator's expertise in the area of labour law met the applicable standard of reasonableness. (329) On appeal, the union argued that the judge erred in applying a standard of reasonableness, as the question of the application of estoppel was one of central importance to the legal system.

Freedman JA for the Court agreed with the lower court judge that the question was one of mixed fact and law, but determined that there was an extricable question of law with 2 parts: 1) whether promissory estoppel was available as a remedy, given the fact that the union was deemed to have complied with an alteration of the initial agreement; 2) whether the law of promissory estoppel requires that the promisor intend by its representation, whatever its form, to affect legal relations with the other party (the promisee). (330) He found this question to be of central importance, given its broad range of application, and held that in considering it, the arbitrator was acting outside of his area of expertise. (331)

Freedman JA reviewed the arbitrator's decision on a correctness standard, outlining two requirements of promissory estoppel: "[fi]rst, there must be some representation made and, second, the representation must be made with the intent to affect legal relations." (332) Thus, while it was open to the arbitrator to conclude that the union had, in its silence, made a representation to the employer that it was aware of the practice with respect to vacation entitlement for casual employees, he made no finding regarding whether the union intended that this silence constitute consent to this practice. (333) Freedman JA noted that even if the union was aware of how vacation entitlement was being calculated, it may not have considered that this was a violation of the collective agreement, and, therefore, may not have intended to affect its legal position vis-a-vis the employer through its silence--in other words, to forego its rights. (334)

Consequently, the Court quashed the part of the arbitrator's award imposing estoppel against the union, and directed the employer to calculate the employee's vacation entitlement as of the date of her grievance. (335)

The Supreme Court allowed an appeal of this decision in December 2011. (336) The Court held that the correct standard of review was reasonableness, and that the arbitrator's decision to impose estoppel was reasonable. (337)

iii. Wrongful Dismissal

Lewis v Terrace Tourism Society

In Lewis v Terrace Tourism Society, (338) the British Columbia Court of Appeal considered two employment law issues: whether an employee who is on leave when an employer winds up its operations is constructively dismissed, and whether a wrongful dismissal action brought against an employer constitutes a repudiation of the employment contract. The appellant, Ms. Lewis, was employed as Terrace's executive director. While on maternity leave, her position was terminated when the Society ceased operations. Before the Society had made an offer of severance to her, Ms. Lewis initiated a small claims action against it seeking damages for breach of employment contract and wrongful dismissal. Subsequently, the Society's solicitor informed Ms. Lewis that her employment had been terminated because of her small claims action. Later, Ms. Lewis commenced an action in the Supreme Court of British Columbia seeking damages for wrongful dismissal or, in the alternative, constructive dismissal. "That action was dismissed on a summary trial application brought by the Society." (339)

Levine JA, for the majority, held that Ms. Lewis' right to reasonable notice on termination was not altered by the fact that she was on maternity leave, and that her position was clearly terminated when the Society ceased operations. (340) The employer neither provided reasonable notice nor offered pay in lieu of notice, and thus repudiated the contract. (341)

Although she felt it was unnecessary to deal with the issue of the small claims action, Levine JA felt that, had the Society's actions not amounted to repudiation of the contract, the initiation of the action did not amount to a repudiation of the contract by the employee. In circumstances where all the indicia of the employment relationship have ended, it would be a "trap for the unwary" to hold than a suing employee may risk repudiating "whatever vestige of the employment contract" might remain. (342) The majority therefore allowed the appeal and remitted the matter to the Supreme Court of British Columbia to determine the appellant's damages. (343)

Justice Frankel dissented, holding that the Society's actions did not amount to a constructive dismissal. He stated that the mere expression by an employer of its intention to exercise its right to terminate an employee's position does not constitute a unilateral or fundamental change to the employment contract so as to amount to constructive dismissal. (344) Here the Society was taking the steps to meet its obligations as her employer. (345) He also held that Ms. Lewis' small claims action constituted repudiation on her part, as this was incompatible with her continued employment. (346)

iv. Pensions

PIPSC v Canada (Attorney General)

PIPSC v Canada (Attorney General) (347) addressed the issue of actuarial surpluses in government pension superannuation accounts as well as whether the government has a fiduciary duty in relation to these amounts. Canadian public servants are entitled to government pension plans ("the Plans"), which are mandatory, contributory defined benefit plans. The government tracks the amounts received and paid under the Plans through the use of superannuation accounts ("the Accounts"). In the early 1990s, the Accounts held an actuarial surplus of assets in relation to the liabilities of the Plans, and the government began amortizing this surplus; that is, it applied it, or at least a portion of it, to offset its annual pension expense. In 1999, Parliament enacted the Public Sector Pension Investment Board Act, (348) which in effect removed the amortized assets in excess of $28 billion from the Accounts rendering them unavailable for pension use.

The Professional Institute of the Public Service of Canada challenged this amendment to the various superannuation acts and sought an order requiring the Government to return the amortized sum of assets. They argued that in removing it from the Accounts, the Government had breached its fiduciary duty to the employees.

Gillese JA, for a unanimous Court, rejected this argument, and held that the plaintiff had no interest in regards to the amounts in question, beyond the employees' defined pension benefits. (349) She further noted that the Accounts do not contain "assets" as the entries in them represent only bookkeeping entries, not real money. (350) The Court also held that the government has no common law fiduciary duty in regards to the amounts in question (351), nor does the Public Service Superannuation Act, (352) set out the rights and obligations of the parties to the actuarial surplus. (353) Furthermore, a fiduciary duty would place the government in a conflict between its responsibility to act in the public interest and its obligation to act in the best interests of the beneficiaries. (354)

The Supreme Court of Canada dismissed an appeal of this decision in December 2012. (355)

VI TORT LAW

i. Duty of Care

Liebig v Guelph General Hospital

In Liebig v Guelph General Hospital, (356) the Ontario Court of Appeal addressed the proper approach to an assessment of the duty of care in cases where a child sues a medical practitioner for damages caused by conduct occurring before birth. A suit was brought against certain health care providers at the Guelph General Hospital alleging negligence after the infant plaintiff suffered injuries during childbirth leading to the development of cerebral palsy. The motions judge held that the defendants owed a duty of care to the infant in relation to his delivery.

The Court of Appeal sat a five-judge panel, as the defendants argued that two recent decisions of the Court, Bovingdon v Hergott (357) and Paxton v Ramji, (358) had fundamentally changed the law with respect to cases where a born alive child sues for damages caused by the conduct of a medical practitioner occurring before birth. Both Bovington and Paxton dealt with a doctor having prescribed drugs to women before they became pregnant. However, rather than characterizing this as a "wrongful life" situation as other courts have done, the Court had held that in such cases, an analysis should be conducted to determine whether the doctor owed a separate duty of care to the future child. (359) The Court concluded that there is no duty of care to a future child if the alleged negligence by a health care provider took place prior to conception. (360) However, at various points in the Paxton judgment, the Court cast the issue in terms of a duty of care to a child "not yet conceived or born" [emphasis added]. (361) The defendants adopted a strictly literal reading of this statement and submitted that Paxton now governed labour and delivery cases where the child had in fact been conceived, such that a duty of care no longer existed at any time prior to birth.

The Court rejected this reading, holding that the authority of labour and delivery cases remains unaffected by Paxton and Bovingdon. "An infant, once born alive, may sue for damages sustained as a result of the negligence of health care providers during labour and delivery." (362) Consequently, it upheld the decision of the motions judge that the defendants owed a duty of care to the plaintiff. (363)

Nattrass v Weber

In Nattrass v Weber, (364) the Alberta Court of Appeal split on the proper interpretation and application of the test for medical negligence outlined by the Supreme Court of Canada in ter Neuzen v Korn. (365)

The plaintiff sustained multiple fractures and underwent several surgeries at the University of Alberta Hospital. He was administered Heparin, a drug used to minimize and prevent blood clotting. While a blood platelet count was initially taken regularly, as his recovery progressed this was discontinued, as ongoing counts were not a standard practice at the time. However, Natrass suffered from a rare condition, Heparin Induced Thrombocytopenia with Thrombosis (HITT), in which Heparin has the opposite of its intended effect, resulting in increased blood clotting. As a result, severe blood clotting necessitated the amputation of both of his legs. The trial judge agreed with the plaintiff that closer monitoring of the platelet counts would have resulted in a different outcome, and found the two orthopaedic surgeons who treated him liable in negligence.

McFayden and Slatter JJA for the majority found that the trial judge erred in the analysis of the professional standard of care. On the basis on ter Neuzen, they held that "the standard of care expected of a doctor is that he have and apply the level of care, skill and knowledge of the average practitioner in his specialty." (366) Thus, the orthopedic surgeons were not to be held to the same standard of care in prescribing Heparin as would a haematologist. (367) An exception to this rule lies if the standard practice fails to adopt obvious and reasonable precautions that are apparent to an ordinary finder of fact. However, the majority concluded that in this case the exception was wrongly invoked; to determine the appropriate standard, the trial judge resorted to expert testimony and interpretation of medical literature not reasonably available when the surgery was performed. (368)

Sulyma JA dissented, distinguishing the prescription of drugs from the general principle that doctors must perform with the skill and knowledge reasonably expected of doctors in their speciality. In her view, a physician has a duty to understand and follow the effects of a drug he prescribes, irrespective of his speciality, (369) and in this case the doctors acted negligently when they failed to monitor the drug's effects post-operatively. (370) Her interpretation and application of the ter Neuzen exception also differed from the majority, as she believed that the need to test platelets could be obvious and reasonable to a lay observer based on the fact that platelets were easily monitored and that HITT could result from Heparin (despite being very rare). (371) There was therefore no need to rely on expert evidence or medical literature to determine that the failure to monitor fell below the appropriate standard of care. She also believed that the majority's narrow interpretation of the ter Neuzen exception would unduly limit its application in future cases. (372)

The plaintiff's application for leave to appeal to the Supreme Court of Canada was dismissed. (373)

ii. Causation

Clements (Litigation Guardian of) v Clements

Clements (Litigation Guardian of) v Clements (374) addressed the applicability of the 'material contribution' test of causation in tort law. The plaintiff was severely injured as a passenger on a motorcycle driven by her husband. Before the husband lost control of the motorcycle, a sharp object punctured the rear tire, causing the deflation of the tire and the eventual capsize of the motorcycle. The trial judge held that he was negligent in two respects: the motorcycle was driven at an excessive speed, and it was overloaded. However, he was not satisfied on a balance of probabilities that the motorcycle would not have capsized but for the excessive weight. (375) Having found that causation could not be proven under the "but for" test, he turned to the material contribution test discussed by the Supreme Court of Canada in Hanke v Resurfice Corp, (376) and found that the defendant's negligence materially contributed to the injuries suffered by his wife. (377)

Justice Frankel for a unanimous Court of Appeal rejected the applicability of the "material contribution" test in this case. He held that the "but for" test remains the primary test on the issue of causation, and that judges may only resort to the material contribution test in two exceptional circumstances, noted by the Court in Resurfice Corp: 1) circular causation, where it is impossible to prove which one of two or more tortious sources caused the plaintiff's injury; and 2) dependency causation, where the causal link is mediated by the action of a third party and it is impossible to prove what the third party would have done had the defendant not been negligent. (378) If causation cannot be determined on the "but for" test, the plaintiff must meet two conditions in order to avail himself of the material contribution test: first, that it is impossible to prove causation either due to circular or dependency causation, and second, that the defendant breached the standard of care and exposed the plaintiff to an unreasonable risk of injury of the type actually suffered. He noted that the "overarching policy" governing causation in tort is that the material contribution test be "available only when a denial of liability under the "but for" test would offend basic notions of fairness and justice." (379)

Applying this analysis, the Court held that there was no circular or dependency causation on the facts. (380) It was not sufficient that the plaintiff, given the limits of the science of motorcycle dynamics, could not demonstrate at what combination of speed and weight it would have been possible to bring the motorcycle to a safe stop after having punctured the tire. Consequently, the causation analysis should have ended at the "but for" test. (381) The trial judge thus erred in concluding that the defendant was negligent.

The Supreme Court allowed an appeal from this decision in June 2012. (382) It agreed with the Court of Appeal that it was not open on the facts for the trial judge to apply the material contribution test. (383) However, the majority found that a new trial should be ordered, as it was not certain what the trial judge would have concluded had he properly applied the "but for" test. (384)

Bradley v. Groves

In Bradley v Groves, (385) the British Columbia Court of Appeal considered the issue of indivisible injuries in tort law. The respondent, Bradley, was injured in two separate motor vehicle accidents. The appellant, Groves, admitted fault for the first accident. After filing a claim against Groves, Bradley was involved in a second motor vehicle accident, which she claims aggravated her injuries. Bradley testified that the second accident aggravated the injuries suffered in the first accident. The trial judge found that the injuries were indivisible and that since Bradley was not contributorily negligent, Groves was liable for the full extent of damages. (386) The appellate court upheld this decision.

Groves attempted to distinguish between the aggravation of a pre-existing tortiously-caused injury and an indivisible injury. Groves argued that the two accident-causing individuals are different tortfeasors and should have their damages apportioned to recognize the different causes of harm in the different accidents. Following Long v Thiessen, (387) the court would be required to assess damages at two time points: the day before the second incident and at trial.

The court held that Athey v Leonati (388) displaced Thiessen as the leading case with respect to indivisible injuries. Indivisible injuries occasioned by tortious causes (or a combination of tortious and non-tortious causes) result in joint liability for tortfeasors. (389) Tortfeasors can seek contribution and indemnity thereby reapportioning damages, but the plaintiff may receive the entire damages owed from one tortfeasor. (390) Leave to appeal to the SCC was dismissed. (391)

VII INTELLECTUAL PROPERTY LAW

Bell v Society of Composers, Authors and Music Publishers of Canada

In Society of Composers, Authors and Music Publishers of Canada v Bell Canada, (392) the Federal Court of Appeal addressed the issue of whether online music previews are a form of fair dealing for the purpose of research, and, thus, whether they are exempted from tariffs under section 29 of The Copyright Act. (393)

The Society of Composers, Authors and Music Publishers of Canada (SOCAN) applied to the Copyright Board to certify a tariff for online music downloads. Though the issue was not argued, the Board applied an exception to the tariff for song previews. Following CCH v Law Society of Upper Canada, (394) the Board adopted a "large and liberal" interpretation of the term "research" that included listening to musical previews (395) and constituted fair dealing under section 29. (396) SOCAN appealed, suggesting that 1) research is a formal experience with restrictive guidelines and section 29 does not apply to the informal search for knowledge and 2) exempting musical previews cannot be said to be 'fair' under section 29.

A unanimous Court of Appeal rejected these arguments. Regarding the first, Letourneau JA, noted the lack of qualifiers on the term "research" in section 29, (397) and held that the primary and ordinary meaning of the term must be used. (398) In his view, a consumer "searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it" (399) constitutes research. He acknowledged that profits also motivate the provision of musical previews, but believed that this purpose did not negate the concurrent research purpose. (400)

Secondly, Letourneau JA upheld the Board's decision that the dealing was fair. Although he did not comment on the other factors (401) used by the Board to determine whether the dealing was fair, he explicitly agreed with their approach to the factor of the amount of the dealing, which was to consider the length of the preview relative to the length of the song. (402) He rejected SOCAN's argument the fairness of the dealing should be measured by totalling the aggregate number of users and previews and the resulting hours of uncompensated music, as, in his view, there was not a sufficient evidentiary basis for debate whether this should replace the Board's approach, or merely become another factor to consider. (403) As the Court did not find the Board's decision to be unreasonable or in error, the appeal was dismissed. (404)

The Supreme Court dismissed an appeal of this judgment in July 2012. (405)

Entertainment Software Association and the Entertainment Software Association of Canada v. CMRRA/SODRAC Inc

In Entertainment Software Association and the Entertainment Software Association of Canada v CMRRA/SODRAC Inc, (406) the Federal Court of Appeal upheld the Copyright Board's determination that the download of a video game which includes music is a communication of that music to the public by telecommunication (407) as provided in section 3(1)(f) of the Copyright Act. (408) The Board made a number of decisions regarding the communication of music on the internet, many of which were judicially reviewed. The Society of Composers, Authors and Music Publishers of Canada proposed a tariff targeted at the communication of musical works over the internet pursuant to the Act. This proposed tariff applied to video games distributed over the internet that contained music. The Entertainment Software Association objected arguing that the tariff should not apply to video games because music is a small part of the audiovisual output as well as the development budget of video games. The Copyright Board rejected this argument and certified the tariff. (409)

Pelletier JA found the decision reasonable and noted that to hold otherwise would deny creators any right to compensation for the use of their music in a video game. (410) There is no de minimis rule in relation to tariffs. (411) This case confirmed that the definition of communication is broad and creators must be compensated for their music used in a video game.

However, the Supreme Court of Canada allowed an appeal in 2012. (412) The majority held that the word "communicate" should not be expanded to capture activities that resemble reproduction and that the distinction between performance-based rights and rights of reproduction should remain. (413) The majority held that there is no practical difference between purchasing a copy of the work in a store, receiving a copy in the mail, or downloading a copy using the Internet; in all cases, ESA had already paid reproduction royalties to the copyright owners for the video games. (414)

VIII CIVIL PROCEDURE

i. Costs

Nazmdeh v Spraggs

In Nazmdeh v Spraggs, (415) a five judge panel of the British Columbia Court of Appeal reconsidered and overturned the Court's previous holding in Kent v Waldock, (416) which required a finding of "reprehensible conduct" by a lawyer before an order that the lawyer be personally responsible for costs could be made under Rule 57(37)(c) of the BC Supreme Court Rules. (417)

Finch CJBC, writing for a unanimous Court, held that on its plain meaning and in accordance with its purpose and scheme Rule 57(37) "cannot be said to require proof of reprehensible conduct." (418) The only preconditions necessary for the award of a personal cost order against a lawyer are that the lawyer has "caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault." (419) The majority found that the requirement of reprehensible conduct applies only when making an order for a lawyer to pay special costs. (420) Although Finch CJBC did note that the power to award costs under Rule 57(37) is discretionary and should be used with restraint, restraint is not to be confused with the appropriate standard required to make the order. (421)

ii. Conflict of Laws

Van Breda v Village Resorts Ltd

In Van Breda v Village Resorts Ltd, (422) Sharpe JA, writing for the Court of Appeal for Ontario, assumed jurisdiction in two personal injury cases where the injury was suffered abroad. He reformulated the Muscutt test for determining when there is a real and substantial connection to allow Ontario courts to assume jurisdiction. (423)

Claude Charron died and Morgan Van Breda suffered serious injuries at two Cuban resorts owned by the same company. Charron's family and Van Breda began claims against several companies associated with these resorts for negligence and breach of contract. The plaintiffs commenced suits in Ontario because the contracts were made in Ontario and some damages were sustained in Ontario. Van Breda also argued that the foreign defendants carried on business in Ontario and that they were necessary and proper parties to the proceeding brought against an Ontario defendant. The foreign defendants moved to dismiss these actions on the grounds that the Ontario courts lacked jurisdiction and that Ontario was not the most convenient forum. The motion judge allowed the actions against one foreign defendant (CRL) to proceed, as the Muscutt test supported the assumption of jurisdiction and Ontario was the most appropriate forum. (424) CRL appealed, submitting that the Muscutt test should be revised in light of recent jurisprudence.

Sharpe JA detailed the eight factor Muscutt test for determining whether there is a sufficient real and substantial connection to support an assumption of jurisdiction by Ontario. He considered the implication of subsequent jurisprudence, the model Court Jurisdiction and Proceedings Transfer Act (CJPTA) developed by the Uniform Law Conference of Canada, and academic criticism of the test. (425) He concluded that the Muscutt test should be clarified and reformulated to bring Ontario law in line with the emerging national consensus without adopting the CJPTA model wholesale. (426)

Sharpe JA held that, where a claim fell under any of the subrules in 17.02 the defendant has a burden to prove that a real and substantial connection does not exist. Where a claim does not meet any factors in this rule, the burden of proof is shifted to the plaintiff. (427) The court noted that the second stage of the Muscutt test focused on two connections: that between Ontario and the plaintiff's claim and that between Ontario and the defendant. (428) Sharpe JA outlined several principles that are relevant in applying the test. First, fairness is an important consideration though it is not an independent factor in the analysis. (429) Second, jurisdiction analysis should be kept separate from forum non conveniens analysis; forum non conveniens factors are only relevant once the jurisdiction test has been satisfied. (430) Third, the involvement of other parties is only relevant where this is a possible connecting factor or to avoid multiple forum non conveniens proceedings. (431) Fourth, jurisdiction should only be assumed where the court would be willing to enforce an extra-provincial judgment on the same jurisdictional basis. (432) Fifth, the conflict of laws standards of other jurisdictions are relevant in the analysis, but are not independent factors. (433) Sixth, the court has a residual discretion to assume jurisdiction where there is no other forum in which a plaintiff can reasonably seek relief. (434)

Sharpe JA applied the modified Muscutt test to the Charron and Van Breda actions against CRL. He found that a real and substantial connection existed in both cases. In particular, CRL's promotional activities in Ontario created a strong connection with this jurisdiction, forcing CRL to defend these claims in Ontario would not be unfair, and Ontario courts would be willing to enforce extra-provincial claims of this nature on the same basis. (435) He concluded that Ontario should assume jurisdiction in both actions. Sharpe JA accepted the motion judge's conclusion on the discretionary forum non conveniens test. (436) The court dismissed the appeals. (437)

The Supreme Court of Canada dismissed the appeal in reasons released on April 19, 2012. (438)

North America Steamships Ltd v HBC Hamburg Bulk Carriers GmbH & Co KG

In North America Steamships Ltd v HBC Hamburg Bulk Carriers GmbH & Co KG, (439) the British Columbia Court of Appeal determined when British Columbia courts have territorial jurisdiction over financial derivative contracts under the Court Jurisdiction and Proceedings Transfer Act ("CJPTA"). (440) The parties signed a Forward Freight Swap Agreement (FFA), essentially a wager on the future price of shipping. Under an FFA, the buyer and seller contract for a notional freight capacity at a fixed rate over a fixed period of time. At the end of each settlement period during the term of the contract, usually monthly, one party is obliged to pay the other depending upon the difference between the contract rate and the rate quoted on the Baltic Exchange in London.

In this contract, the respondent buyer (North America Steamships) was a British Columbian company and the appellant seller (HBC Hamburg) was German-based. The contract was to be governed by English law and was subject to the "non-exclusive jurisdiction of the High Court of Justice in London, England." (441) A dispute arose under the contract relating to the term that required each party to be solvent; the respondent buyer emailed the appellant stating that it was unable to perform its obligations due to losses. After the dispute arose, North America Steamships asked for the payments under the contract to be directed to the care of a British Columbian law firm. On this basis, the chambers judge found that the Supreme Court of British Columbia had territorial competence over the dispute under the CJPTA. (442) The judge found that the claim had a real and substantial connection to British Columbia on two independent grounds. First, under section 10(e), the proceeding concerned contractual obligations "which, to a substantial extent, were to be performed in British Columbia." (443) Under section 10(e), the chambers judge found that the main substance of the FFA was "payment," and that this was not merely "incidental to the provision of services performed in another jurisdiction." (444) Second, under section 10(h), the proceeding concerns a business carried on in British Columbia. (445)

On appeal, the court held that the British Columbian courts do not have jurisdiction under the CJPTA. (446) In a contract providing for wire-transfers from bank to bank that could be redirected at any time by either party, "a reference to a place of performance is of necessity rather ephemeral." (447) Thus, the FFA had no real connection to British Columbia aside from the plaintiff's residence, at least until the payment was redirected to British Columbia. (448) The court analyzed section 10(e)(i) and found that its framing in the past tense ("were to be performed in British Columbia") directed the court to look at the contract in its entirety and not just at its final portion. (449) Since the direction of payment to British Columbia concerned only two payments and arose after an event that may have entitled the appellant to terminate the contract, the obligation to perform contractual obligations in British Columbia did not rise to the statutory standard of "a substantial extent" as required by statute. (450)

iii. Standing

Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General)

In Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General) (451) the British Columbia Court of Appeal considered whether to grant public interest standing to an organization or individual to bring a comprehensive constitutional challenge to a statute when parties with private standing are capable of challenging the same provisions, albeit in a piecemeal manner. The organization, Downtown Eastside Sex Workers United Against Violence Society, ("SWUAV") and a former sex worker who has no plan to return to sex work sought standing to challenge the constitutional validity of several Criminal Code provisions that allegedly endangered sex workers' lives by depriving them of the ability to conduct their work safely.

The majority held that public interest standing should be interpreted liberally so as not to immunize the legislation from scrutiny. (452) The court's analysis focused on the third of three factors from the Supreme Court of Canada's decision in Canadian Council of Churches v Canada (Minister of Employment and Immigration)-. (453) whether there was "another reasonable and effective way to bring the issue before the court." (454) Saunders JA held that the "the [trial] judge failed to give sufficient weight to the breadth of the constitutional challenge and the comprehensive and systemic nature of the plaintiffs' theory." (455) She returned the issue to the Supreme Court of British Columbia for determination. (456)

In dissent, Groberman JA found no principled basis for granting standing when the impugned provisions could be effectively challenged by the myriad of individuals charged with prostitution-related offences every year. He did not agree that the "broad nature of the attack on legislation in this case" assisted the plaintiffs. (457) He preferred that plaintiffs challenge the legislation on a case-by-case basis with a full factual record rather than forcing the court to become a "commission of inquiry" into the policy behind the criminalization of prostitution. (458)

The Supreme Court of Canada dismissed the appeal. (459)

iv. Limitations

Waterloo Region District School Board v Truax Engineering Ltd

In Waterloo Region District School Board v Truax Engineering Ltd, (460) the Ontario Court of Appeal considered whether a defendant may cross-claim against a concurrent tortfeasor for contribution and indemnity even after the plaintiff's claim against that concurrent tortfeasor has become statute-barred by the passage of time under section 18 of the Limitations Act, 2002. (461) Under the old section 8 of the Negligence Act, (462) a defendant had the right to make a claim against a concurrent tortfeasor within one year of a judgment against him, even where the limitation period precluding the plaintiff from suing the concurrent tortfeasor had elapsed. This section was repealed by the Limitations Act, 2002. (463)

After judgment against it, Waterloo Region District School Board (WRDSB) sued Truax Engineering Ltd., the concurrent tortfeasor. Truax Engineering Ltd. brought a motion for summary judgment, which was dismissed. The company appealed the order arguing that section 18 of the Limitations Act, 2002 does not have the same effect as the old section 8. The WRDSB submitted that logic and fairness suggested it would be unfair if the plaintiff's election not to sue a concurrent tortfeasor in a timely way could extinguish its right to seek contribution and indemnity.

Justice Feldman found that, as a matter of statutory interpretation, section 18 of the new Act is intended to and does allow claims for contribution and indemnity to be brought after the expiry of the otherwise applicable limitation period. Under section 18, a claim for contribution and indemnity has a two-year limitation period that is "presumed to run from the date when the person who seeks contribution and indemnity is served with the plaintiff's claim that gives rise to its claim over." (464) The court noted that there is nothing in the language of the Limitations Act, 2002 to suggest that the legislature contemplated any change to section 8 except those contained in the specific wording of section 18. (465) The new section is silent with respect to the ability to bring a claim for contribution and indemnity. Thus, section 18 was not intended to change the existing law. Furthermore, if the court concluded that there was a further limitation period then the effect of the Act in creating a universal limitation period for contribution and indemnity would be undermined. (466)

IX BUSINESS LAW

i. Arbitration

Griffin v Dell Canada Inc

In Griffin v Dell Canada Inc, (467) the Court of Appeal for Ontario considered the effect of the Consumer Protection Act, 2002 (468) ("CPA") on the validity of a mandatory arbitration clause in a consumer contract. Despite an arbitration clause, the representative plaintiff sought certification of a class action against Dell Canada Inc. claiming that its Inspiron notebook computers were defective. The motions judge certified a class action against Dell Canada Inc. The judge also refused to grant a partial stay for proposed members who do not meet the definition of "consumer" under the CPA. Dell Canada Inc. appealed.

Sharpe JA, for the unanimous court, first noted that the modern approach to arbitration clauses, reflected by Dell Computer Corp v Union des Consommateurs (469) ("Dell Computer"), is "to require parties to adhere to their choice and to view arbitration as an autonomous, self-contained and self-sufficient process, presumptively immune from judicial intervention." (470) However, Sharpe JA held that the enactment of the CPA rendered the law in Ontario different from the Quebec law applicable in Dell Computer. In Ontario, the CPA, enacted in 2002, does not permit enforcement of mandatory arbitration clauses inserted in consumer agreements. (471) The CPA was drafted by the legislature to protect consumers from suppliers and sellers who insert arbitration clauses as a means of dissuading claims rather than genuinely seeking arbitration. The Court of Appeal for Ontario held that consumers who fall within the scope of the CPA are not bound by the arbitration clauses. (472)

The Court was forced to consider the scope of the definition of a "consumer" under the CPA. It held that the CPA applied to the representative plaintiff who purchased his computer prior to the enactment of the CPA because the facts that triggered the arbitration clause did not fully occur until after the CPA effective date. (473) As well, the court held that Dell had no "vested right" to enforce the arbitration clause in respect of computers purchased before the CPA had effect. (474)

Sharpe JA considered Dell Canada Inc.'s submission that a partial stay should be granted in respect of individuals who did not meet the CPA definition of a consumer. The court refused to grant a partial stay with respect to the "non-consumers" based on considerations of judicial efficiency. (475) The consumer claims dominate and the liability and damages issues are the same for consumers and non-consumers (i.e. those who purchased the computer for business purposes). (476) Having resolved the appeal on these grounds, Sharpe JA declined to decide whether Dell Computer as decided by the Supreme Court in 2009 applies to any extent in Ontario, given that, since the CPA effective date, mandatory arbitration clauses are not effective with respect to consumer purchases. Leave to appeal to the SCC was dismissed on May 20, 2010. (477)

ii. Duty of Good Faith

Salah v Timothy's Coffees of the World Inc

In Salah v Timothy's Coffees of the World Inc, (478) the Court of Appeal for Ontario held that damages arising from a breach of section 3 of the Arthur Wishart Act (Franchise Disclosure) 2000 (479) ("Wishart Act") are not limited to compensatory damages from loss of profits. Rather, a breach may give rise to punitive or exemplary damages. (480) Under the franchise agreement between the parties, Mr. Salah had a right to renew the franchise should Timothy's enter into a new lease with the shopping center where the coffee shop operated. However, Timothy's entered into a new lease, contracted with a new franchisee, and deliberately kept information concerning these transactions from Mr. Salah. At trial, Timothy's conduct was found to constitute a breach of conduct and a breach of the duty of good faith under section 3 of the Wishart Act. (481) The judge awarded damages for breach of contract, breach of the duty of good faith, and mental distress. (482) The Court of Appeal upheld the damage award.

Section 3 of the Wishart Act provides that each party owes a duty of fair dealing in a franchise agreement including "the duty to act in good faith and in accordance with reasonable commercial standards." (483) A breach of section 3 constitutes an independent actionable wrong. Winkler CJO, writing for the court, found that this remedial legislation should be given a "broad and generous" interpretation. (484) To read it restrictively would defeat the policy initiative for which the legislation was enacted, namely to redress the power imbalance between the franchisor and franchisee. (485) Winkler CJO noted that, in general, courts have limited the duty of good faith between contracting parties. However, in enacting specific legislation with respect to franchise agreements, the legislature signaled its clear intent to treat such relationships differently. (486) The legislature is concerned with the conduct of the breaching party rather than the damage caused, as evidenced in the language of section 3(2). Winkler CJO found that damage awards under section 3 should be informed by the degree of the breach and offending conduct in the circumstances. (487) On the facts, Timothy's conduct was the sort of "mischief" that could lead to a punitive damage award. (488)

X TAX LAW

80 Mornelle Properties Inc v Malla Properties Ltd.

In 80 Mornelle Properties Inc v Malla Properties Ltd, (489) the Court of Appeal for Ontario addressed the nature and consequences of the right to the proceeds of a property tax reassessment. The property in question was sold while the tax appeal was pending and the resulting refund issued to the purchaser. The Court concluded that the right attaching to the proceeds is a chose in action and not a right which runs with the land. (490) Accordingly, it does not pass to the purchaser except where expressly assigned by contract or statute. (491)

The appellant's building was assessed for property tax purposes by the City of Toronto ("the City"). The appellant appealed this assessment. While that appeal was pending, the appellant sold the building to the respondent. The tax appeal was ultimately successful. As stipulated by section 306(2) of the City of Toronto Act, 2006, (492) the City paid the resulting refund to "the owner ... on the date the adjustment [was] made", in this case, the respondent. (493) The appellant applied to have the refund (less the amount attracted during the period following the sale) redirected to its account. The seller appeals from the denial of that application.

Gillese JA endorsed the view of the Ontario Municipal Board as expressed in Mitsubishi Electronics Canada Inc v Ontario Property Assessment Corp, (494) that the interest in the proceeds of a tax reassessment is an intangible personal property right. (495) Reassessment of real property does not create any tangible asset or liability per se. However, it may form the basis for an action for recovery of any overpayment resulting from the overvaluation of the property. (496) Further, applying Morguard Properties Ltd v Winnipeg (City), (497) Gillese JA determined that section 306 of the City of Toronto Act does not operate to strip the appellant of this right. (498) Accordingly, the respondent was unjustly enriched and possessed "no juristic reason" to retain the balance of the refund. (499) The appeal was granted. (500)

XI TRUST LAW

St. Michael Trust Corp v Canada

In St. Michael Trust Corp v Canada, (501) the Federal Court of Appeal considered where a trust is resident for tax purposes when the trustee resides outside of Canada. The appellant, St. Michael Trust Corporation, contended that the trust was subject to the tax law of Barbados, which the appellant claimed was the trust's country of residence, and not to the Canadian Income Tax Act. (502) The trial judge found that Canadian executives of the trust had made key decisions, and that therefore the trust was resident in Canada. (503)

After a review of the case law, Justice Sharlow, writing for a unanimous court, found that there was no single test consistently applied to determine the residence of a trust. (504) Justice Sharlow rejected the trust's submission that section 104 of the Income Tax Act embodies the trust as taxpayer in the person of the trustee and thus assumes his or her country of residence. The residence of the trustee is not determinative of the residence of the trust. (505) The Court of Appeal agreed with the trial judge that the appropriate test is the judge-made "central management and control" test used to determine the residence of a corporation for tax purposes. (506) Under this test, "the residence of a corporation usually will be determined as the place where the corporate directors exercise their management and control responsibilities." (507) Applying the central management and control test to the facts, Justice Sharlow determined that the trust was resident in Canada. (508)

St. Michael Trust Corporation appealed to the Supreme Court of Canada, which affirmed the decision of the Federal Court of Appeal on April 11, 1011. (509)

XII INSURANCE LAW

Meadows v Meloche Monnex Insurance Brokers Inc

In Meadows v Moloche Monnex Insurance Brokers Inc, (510) the Court of Appeal for Ontario considered whether an insurer has a duty to defend against an intentional tort claim even when the insured pleads self-defence. Mr. Skidmore claimed to have been assaulted by Mr. Meadows and sought damages from him. Meadows filed affidavit evidence and a statement of defence. Meadow's insurer denied any responsibility to defend the claim because Meadow's insurance policy did not cover intentional acts. The application judge followed a recent line of authority and held that self-defence is not an intended act within the meaning of the insurance policy, so a duty to defend did arise. The insurer appealed. (511)

Rouleau JA, writing for the court, held that there was no duty to defend on the appellant in this case. (512) The Court reasoned that if Meadow's defence were successful, then there would be no claim to indemnify. If his defence were not successful, then Meadows would be liable for damages arising from an intentional tort. (513) Under the insurance policy, there was no duty to defend intentional acts, so the insurer could not be liable. The application judge had applied Thorne v Royal & SunAlliance Insurance Co of Canada, (514) Hawkes v TD Home & Auto Insurance Co, (515) and Glassford v TD Home & Auto Insurance Co. (516) Rouleau JA distinguished Thorne, which involved a commercial general liability policy where the exclusion from coverage for intentional bodily injury contained an exception for the use of reasonable force in protecting persons or property. With respect to the Hawkes and Glassford decisions, Rouleau JA stated, "[T]o the extent that they are inconsistent with these reasons, I disagree with them." (517) The Court allowed the appeal. (518)

(1) 2010 ONCA 670, 102 OR (3d) 161.

(2) Ibid at paras 5-7.

(3) Ibid at paras 61-69.

(4) Ibid at paras 51-53.

(5) Ibid at para 54.

(6) Ibid at paras 57-59.

(7) Ibid at paras 73-82.

(8) Ibid at paras 84-87.

(9) Ibid at para 88.

(10) Ibid at paras 90-95.

(11) R v NS, 2012 SCC 72 at para 57, 353 DLR (4th) 577.

(12) 2010 ONCA 726, 102 OR (3d) 673.

(13) Ibid at paras 4-9.

(14) Ibid at paras 10-11.

(15) Ibid at paras 31-39.

(16) Ibid at paras 20-21.

(17) Ibid at paras 49-50.

(18) Ibid at para 55.

(19) 2010 BCCA 450, 325 DLR (4th) 313.

(20) Ibid at paras 1-4.

(21) Ibid at para 32.

(22) Ibid at paras 38-45.

(23) Ibid at paras 46-48.

(24) Ibid at para 61.

(25) Ibid at para 14.

(26) Ibid at para 81.

(27) 2010 SKCA 2, 251 CCC (3d) 516.

(28) Ibid at paras 1-3.

(29) Ibid at paras 5-6.

(30) Ibid at para 35.

(31) Ibid at paras 26, 38.

(32) 2010 BCCA 250, 319 DLR (4th) 512 [Arkinstall].

(33) SBC 2003, c 39.

(34) Arkinstall, supra note 32 at para 25.

(35) [1996] 1 SCR 128, 132 DLR (4th) 31.

(36) [1984] 2 SCR 145, 11 DLR (4th) 641.

(37) Arkinstall, supra note 32 at paras 51-53.

(38) Ibid at para 76.

(39) Ibid at paras 80-81.

(40) Ibid at paras 83, 92.

(41) Ibid at para 96.

(42) 2010 BCCA 126, 253 CCC (3d) 74.

(43) Ibid at paras 1-4.

(44) Ibid at para 10.

(45) Ibid at para 41.

(46) Ibid at para 45.

(47) Ibid at paras 54-56.

(48) Ibid at para 72.

(49) Ibid at paras 73-74.

(50) 2010 ONCA 223, 207 CRR (2d) 360 [Quenneville].

(51) Ibid at paras 1-2.

(52) Ibid at para 4.

(53) [1999] 2 SCR 625, 175 DLR (4th) 193.

(54) Quenneville, supra note 50 at paras 13-20.

(55) Ibid at paras 21-22.

(56) Ibid at paras 23-40.

(57) R v Quenneville, [2010] SCCA No 409.

(58) 2010 BCCA 15, 314 DLR (4th) 209 [PHS].

(59) SC 1996, c 19.

(60) PHS, supra note 58 at paras 114-119.

(61) Ibid at paras 167-168.

(62) Ibid at paras 169-178.

(63) Ibid at para 45.

(64) Ibid at paras 74-75.

(65) Ibid at paras 76-77.

(66) Ibid at paras 236-240.

(67) Ibid at para 244.

(68) Ibid at para 304.

(69) Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at paras 141-156, [2011] 3 SCR 134.

(70) 2010 ONCA 818, 103 OR (3d) 161.

(71) Ibid at paras 20-26.

(72) Ibid at paras 32-38.

(73) Ibid at para 46.

(74) 2012 SCC 75 at para 88, 356 DLR (4th) 420.

(75) 2010 ONCA 451, 256 CCC (3d) 234 [Crangle].

(76) Ibid at paras 5-9.

(77) [1999] 1 SCR 330, 169 DLR (4th) 193.

(78) Crangle, supra note 75 at para 17.

(79) Ibid at para 20.

(80) Ibid at para 23.

(81) Ibid at para 35.

(82) R v Crangle, [2010] SCCA No 300.

(83) 2010 ONCA 577, 259 CCC (3d) 293 [Sarrazin].

(84) Ibid at paras 20-25.

(85) Section 662(2) states that where a count charges first degree murder but this is not proven on the evidence, the accused may be found guilty of second degree murder or an attempt to commit second degree murder if either is proven on the evidence. Subsection (3) states that where a count charges murder but this is not proven on the evidence, the accused may be found guilty of manslaughter or infanticide if either is proven on the evidence, but not of any other offence (other than concealing the body of a child, pursuant to subsection (4)). Subsections (5) and (6) are similar provisions dealing with criminal negligence causing death or bodily harm and the alternative offence of dangerous operation of a vehicle, and breaking and entering with or without intent to commit an indictable offence therein, respectively. However, despite these provisions related to specific offences, subsection (1) states that if an offence charged cannot be proven, the accused may be convicted of an included offence that is proven, or "an attempt to commit an offence so included."

(86) Sarrazin, supra note 83 at para 49.

(87) Ibid at paras 62, 104.

(88) Ibid at para 103.

(89) Ibid at para 110.

(90) Ibid at para 144.

(91) R v Sarrazin, 2011 SCC 54 at paras 3, 26-28, [2011] 3 SCR 505.

(92) 2010 MBCA 18, 252 CCC (3d) 349 [Kematch].

(93) Ibid at paras 4-10.

(94) Ibid at para 55.

(95) 2008 SCC 59, [2008] 3 SCR 195.

(96) (1985), 18 CCC (3d) 462, 7 OAC 190 (Ont CA).

(97) Kematch, supra note 92 at para 97.

(98) Ibid at para 113.

(99) 2010 ONCA 575, 261 CCC (3d) 293 [El-Jamel].

(100) 2005 ONCA 258, 77 OR (3d) 641.

(101) El-Jamel, supra note 99 at paras 13-20.

(102) Ibid at paras 33-46.

(103) Bill C-54, Protecting Children from Sexual Predators Act, 3rd Sess, 40th Parl, 2010.

(104) Bill C-10, Safe Streets and Communites Act, 1st Sess, 41st Parl, 2011 (assented to 13 March 2012). See Safe Streets and Communities Act, SC 2012 c 1.

(105) Criminal Code, RSC 1985, c C-46, s 172.1.

(106) 2010 BCCA 536, 265 CCC (3d) 79 [Truong].

(107) Criminal Code, RSC 1985, c C-46, s 258(1).

(108) R v Bickford (1989), 51 CCC (3d) 181, 34 OAC 34; R v Rigitano, [1999] OJ No 997; and R v Dineley, 2009 ONCA 814, 284 CCC (3d) 489, rev'd 2012 SC 58, [2012] SCJ No 58.

(109) Truong, supra note 106 at para 15.

(110) Ibid at paras 18, 21.

(111) R v Truong, [2011] SCCA No 70.

(112) 2010 ONCA 423, 256 CCC (3d) 355 [Prokofiew].

(113) RSC 1985, c C-5

(114) Ibid at paras 1-2.

(115) [1995] 1 SCR 858, 96 CCC (3d) 481.

(116) [1997] 1 SCR 874, 146 DLR (4th) 385.

(117) Prokofiew, supra note 112 at paras 18-40.

(118) Ibid at paras 51, 61, 64.

(119) 2012 SCC 49 at para 36, [2012] 2 SCR 639.

(120) 2010 ABCA 116, 254 CCC (3d) 50.

(121) Ibid at paras 1-26.

(122) Ibid at para 46.

(123) Ibid at paras 55-62.

(124) Ibid at paras 76, 100, 113-114.

(125) Ibid at paras 121-122.

(126) Ibid at para 127.

(127) Ibid at para 131.

(128) 2011 SCC 51 at paras 40-44, [2011] 3 SCR 368.

(129) 2010 NSCA 3, 251 CCC (3d) 51 [Hutchinson].

(130) Ibid at paras 2-14.

(131) Ibid at paras 17-20.

(132) Ibid at para 34.

(133) 2006 ABCA 244, 391 AR 62.

(134) [1994] RJQ 69, 90 CCC (3d) 291 (Que CA).

(135) Hutchinson, supra note 129 at para 38.

(136) [1998] 2 SCR 371, 162 DLR (4th) 513.

(137) Ibid at paras 42-46.

(138) Ibid at para 55.

(139) Ibid at paras 168-72.

(140) Ibid at para 128.

(141) Ibid at paras 154-57.

(142) 2011 NSSC 361 at para 58, 311 NSR (2d) 1.

(143) 2013 NSCA 1 at para 140, 325 NSR (2d) 95.

(144) 2010 BCCA 354, 257 CCC (3d) 329.

(145) Ibid at paras 17-20.

(146) Ibid at para 32.

(147) Ibid at paras 54-58.

(148) Ibid at paras 99-100.

(149) Ibid at para 98.

(150) Ibid at paras 109-110.

(151) Ibid at paras 137-140.

(152) 2010 ONCA 861, 103 OR (3d) 600 [Khalid].

(153) 2010 ONCA 862, 103 OR (3d) 321 [Khawaja].

(154) There were two additional issues in the Khawaja appeal. Firstly, the Court of Appeal overturned the trial judge's finding that s 83.01 of the Code, requiring the Crown to prove that the act or omission was committed "in whole or in part for a political, religious or ideological purpose, objective or cause", (the 'motive clause') was an unjustifiable infringement of s 2(b) of the Charter because of the potential for a 'chilling effect' on political and religious expression. It held that terrorist activity as defined in s 83.01 does not fall within the scope of s 2(b) as it does not promote any of the values underlying freedom of expression. Secondly, the Court rejected the appellant's argument that his conduct fell under the armed conflict exception to terrorist offences in s 83.01(1)(b)(ii). It held that given its purpose to protect those engaged in battle from criminal liability, for this provision to negate liability the evidence must prove that the appellant's activities (1) were undertaken while an armed conflict was in progress, and (2) were in accordance with the rules of war established by international law applicable to that armed conflict. While the appellant satisfied the first criterion, it was clear that the appellant did not act in accordance with international law.

(155) Khalid, supra note 152 at paras 56-61; Khawaja, supra note 153 at paras 253-256.

(156) Khawaja, supra note 153 at para 192.

(157) Ibid at para 201.

(158) Khalid, supra note 152 at para 33.

(159) Ibid at para 34.

(160) Ibid at para 58.

(161) 2012 SCC 69 at para 131, 356 DLR (4th) 1.

(162) 2010 ONCA 30, 250 CCC (3d) 277 [Peters].

(163) Ibid at paras 1-6.

(164) [1999] 1 SCR 688, 171 DLR (4th) 385.

(165) Peters, supra note 162 at paras 11, 19.

(166) Ibid at para 35.

(167) Ibid at paras 38-41.

(168) Ibid at paras 44-45.

(169) Ibid at para 23.

(170) 2010 MBCA 41, 254 CCC (3d) 559 [Peebles].

(171) Ibid at paras 3-6.

(172) Ibid at paras 13-16.

(173) Ibid at para 18.

(174) 2008 SCC 21, [2008] 1 SCR 123.

(175) Peebles, supra note 170 at para 43.

(176) Ibid at paras 47-48.

(177) Ibid at para 54.

(178) 2010 ONCA 488, 257 CCC (3d) 261 [Ramage].

(179) 2009 SCC 32, [2009] 2 SCR 353.

(180) Ramage, supra note 178 at paras 1-5.

(181) Ibid at para 28.

(182) Ibid at para 44.

(183) Ibid at paras 48-50.

(184) Ibid at paras 51-53.

(185) Ibid at paras 10-13.

(186) Ibid at paras 80-81.

(187) 2010 SKCA 69, 255 CCC (3d) 451.

(188) Ibid at para 1.

(189) Ibid at para 20.

(190) Ibid at para 29.

(191) Ibid at paras 37-39.

(192) 200 SKCA 117, 314 DLR (4th) 534 [Phillips].

(193) SS 1997, c F-6.3.

(194) Phillips, supra note 192 at paras 1-6, 15.

(195) Ibid at para 8.

(196) Ibid at paras 12-18.

(197) Ibid at para 29.

(198) Ibid at paras 39-41.

(199) Ibid at paras 30-34.

(200) 2010 BCCA 61, 315 DLR (4th) 498 [Shortridge-Tsuchiya].

(201) RSBC 1996, c 128.

(202) 25 October 1980, 1343 UNTS 22514, Can TS 1983 No 35 (entered into force 1 December 1983).

(203) Shortridge-Tsuchiya, supra note 200 at paras 19-21, 25.

(204) Ibid at paras 2-4.

(205) Ibid at paras 39-40, 45.

(206) Ibid at para 61.

(207) SBC 2003, c 28 [CJPTA].

(208) Shortridge-Tsuchiya, supra note 200 at paras 60, 141, 162-163; CJPTA, ibid, s 11.

(209) Shortridge-Tsuchiya, supra note 200 at paras 61-62..

(210) Ibid at paras 55-56, 75.

(211) Ibid at paras 155, 157.

(212) Shortridge-Tsuchiya v Tsuchiya, [2010] SCCA No 106.

(213) SBC 2011, c 25, s 259.

(214) 2010 BCCA 595, 12 BCLR (5th) 330 [Greene].

(215) Ibid at para 15.

(216) SOR/97-175.

(217) Greene, supra note 214 at paras 43-47.

(218) Ibid at paras 55-59.

(219) Ibid at paras 48-53.

(220) Family Law Act, supra note 213, s 259.

(221) 2010 FCA 203, 405 NR 73 [Heron].

(222) Ibid at para 1.

(223) Ibid at para 57.

(224) RSC 1985, c 1 (5th Supp), s 20(1)(1) [Tax Act].

(225) Heron, supra note 221 at para 10.

(226) Ibid at para 18

(227) Ibid at para 24.

(228) Ibid at para 21.

(229) Ibid at para 22.

(230) Ibid at para 24.

(231) Ibid at para 39.

(232) [2001] 1 CTC 227, 2001 DTC 5075 (FCA).

(233) [1985] 1 SCR 39, 16 DLR (4th) 447.

(234) 2010 ONCA 47, 265 OAC 247.

(235) Heron, supra note 221 at paras 42, 46.

(236) Ibid at para 54.

(237) Ibid.

(238) Ibid at para 56.

(239) 1010 FCA 118, [1011] 4 FCR 3 [Zeng].

(240) 28 July 1951, 189 UNTS 137, Can TS 1969 No 6 (entered into force 22 April 1954).

(241) Zeng, supra note 134 at paras 1-2.

(242) Ibid at para 38.

(243) Ibid at para 39.

(244) Ibid at para 28.

(245) Ibid at para 40.

(246) 2010 FCA 307, [1012] 2 FCR 312.

(247) Ibid at para 82, RSC 1985, C C-29.

(248) Ibid at para 4.

(249) Ibid at para 7.

(250) Ibid at para 64.

(251) Ibid at paras 70-71.

(252) Ibid at paras 72-73.

(253) Ibid at paras 74-75.

(254) Ibid at paras 78-79.

(255) Ibid at para 80.

(256) Ibid at para 81.

(257) 2010 FCA 199, [2012] 1 FCR 396 [Khadr].

(258) Ibid at para 6.

(259) Ibid.

(260) Ibid at para 7.

(261) Ibid at para 9.

(262) Ibid.

(263) Ibid.

(264) [1994] 3 SCR 311 at para 48, 111 DLR (4th) 85; Khadr, supra note 257 at para 4.

(265) Ibid at paras 13-14.

(266) Ibid at paras 19-21.

(267) Ibid at para 28.

(268) Ibid at para 33.

(269) Ibid at para 35.

(270) 2010 BCCA 77 at para 1, 316 DLR (4th) 648 [Workers' Compensation].

(271) Ibid at para 2.

(272) RSBC, 1996 c 210 [BC HRC].

(273) Workers' Compensation, supra note 270 at para 2.

(274) BC HRC, supra note 272 at ss 25(2), 27(1)(f).

(275) Workers' Compensation, supra note 270 at para 38.

(276) Ibid at para 42.

(277) Ibid at para 40. While the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, has abolished the standard of review of patent unreasonableness at common law, the BC Administrative Tribunals Act (SBC 2004, c 45) maintains it.

(278) Workers' Compensation, supra note 270 at para 37.

(279) Ibid at paras 38-39.

(280) Ibid at para 40.

(281) British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52 at para 55, [2011] 3 SCR 422.

(282) Ibid at paras 49-54.

(283) Ibid at paras 49-50.

(284) 2010 BCCA 478, 326 DLR (4th) 77 [Moore].

(285) Ibid at para 1.

(286) Ibid at para 4.

(287) 2004 SCC 78, [2004] 3 SCR 657.

(288) Moore, supra note 284 at para 177.

(289) Ibid at paras 178, 182.

(290) Ibid at paras 184-85.

(291) [1985] 2 SCR 536, 23 DLR (4th) 321.

(292) Moore, supra note 284 at para 115.

(293) Ibid at para 135.

(294) Moore v British Columbia (Education), 2012 SCC 61 at paras 70-71, 351 DLR (4th) 451.

(295) Ibid at para 4.

(296) Ibid at paras 27-30.

(297) Ibid at para 34.

(298) 2010 ONCA 593, 102 OR (3d) 97 [ODSP].

(299) 2008 SCC 41 at para 17, [2008] 2 SCR 483.

(300) ODSP, supra note 298 at paras 127, 149; RSO 1990, c H19

(301) SO 1997, c 25, Sched B.

(302) [1999] 1 SCR 497, 170 DLR (4th) 1.

(303) ODSP, supra note 298 at para 72.

(304) Ibid.

(305) Ibid.

(306) Ibid at paras 123, 127.

(307) 2010 ONCA 81, 98 OR (3d) 561 [Leering].

(308) Ibid at paras 50-51.

(309) Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18

(310) Leering, supra note 307 at para 3.

(311) Ibid at paras 18-22.

(312) Ibid at para 37.

(313) Ibid at para 28.

(314) Ibid at paras 30, 31, 33.

(315) Ibid at paras 36-37.

(316) Ibid at para 46.

(317) Ibid at para 43.

(318) 2010 ABCA 326, 326 DLR (4th) 263 [Armstrong].

(319) RSA 2000, c L-1, ss 26, 151.

(320) Armstrong, supra note 318 at para 16.

(321) Ibid at para 22.

(322) Ibid at para 21.

(323) Ibid.

(324) Ibid at para 23.

(325) Ibid at para 24.

(326) Ibid at para 25.

(327) Ibid at paras 28, 47.

(328) 2010 MBCA 55, 319 DLR (4th) 193.

(329) Ibid at paras 18, 22.

(330) Ibid at paras 40-41.

(331) Ibid at paras 46, 50, 52.

(332) Ibid at paras 56.

(333) Ibid at paras 79, 80, 82.

(334) Ibid at para 82.

(335) Ibid at para 84.

(336) MAHCP v Nor-Man Regional Health Authority, 2011 SCC 59, [2011] 3 SCR 616.

(337) Ibid at paras 57-61.

(338) 2010 BCCA 346, 321 DLR (4th) 122.

(339) Ibid at para 1.

(340) Ibid at para 41.

(341) Ibid.

(342) Ibid at para 55.

(343) Ibid at para 57.

(344) Ibid at paras 30, 33-34.

(345) Ibid at para 35.

(346) Ibid at para 36.

(347) 2010 ONCA 657, 102 OR (3d) 241 [PIPSC]. PIPSC stands for the Professional Institute of the Public Service of Canada.

(348) SC 1999, c 34. This Act amended the Public Service Superannuation Act, RSC 1985, c P-36, as amended by SC 1999, c 34; the Canadain Forces Superannuation Act, RSC 1985, c C-17, as amended by SC 1999, c 34; and the Royal Canadian Mounted Police Superannuation Act, RSC 1985, c R-11, as amended by SC 1999, c 34. These are collectively known as the Superannuation Acts. See PIPSC, ibid at paras 6-9, fn 1-4.

(349) PIPSC, supra note 347 at para 77.

(350) Ibid at paras 47, 50.

(351) Ibid at para 93.

(352) Supra, note 348.

(353) PIPSC, supra note 341 at para 74.

(354) Ibid at para 96.

(355) PIPSC v Canada (Attorney General), 2012 SCC 71 at paras 164-65, 352 DLR (4th) 491.

(356) 2010 ONCA 450, 321 DLR (4th) 378 [Liebig].

(357) 2008 ONCA 2, 88 OR (3d) 641 [Bovingdon].

(358) 2008 ONCA 697, 299 DLR (4th) 614 [Paxton]

(359) Bovingdon, supra note 351 at para 61; Paxton supra note 358 at para 37.

(360) Ibid at para 76; Bovingdon, supra note 351 at para 70.

(361) Paxton, supra note 358 at para 53.

(362) Liebig, supra note 356 at para 6.

(363) Ibid at para 8.

(364) 2010 ABCA 64, 316 DLR (4th) 666 [Nattrass].

(365) [1995] 3 SCR 674, 127 DLR (4th) 577.

(366) Natrass, supra 364 at para 26.

(367) Ibid.

(368) Ibid at paras 40-41.

(369) Ibid at para 67, 69-70.

(370) Ibid at para 72.

(371) Ibid at para 74.

(372) Ibid at para 78.

(373) Nattrass v Weber, [2010] SCCA No 159.

(374) 2010 BCCA 581, 327 DLR (4th) 1 [Clements].

(375) Ibid at para 3.

(376) 2007 SCC 7, [2007] 1 SCR 333.

(377) Clements, supra note 374 at para 3.

(378) Ibid at paras 54-56.

(379) Ibid at para 63.

(380) Ibid at para 64.

(381) Ibid.

(382) Clements (Litigation Guardian of) v Clements, 2012 SCC 32, [2012] 2 SCR 181.

(383) Ibid at para 5.

(384) Ibid.

(385) 2010 BCCA 361, 326 DLR (4th) 732 [Bradley].

(386) Ibid at para 10.

(387) (1968), 65 WWR 577, 1968 CarswellBC 139 (CA) [Thiessen].

(388) [1996] 3 SCR 458, 140 DLR (4th) 235.

(389) Bradley, supra note 385 at paras 32-34.

(390) Ibid at para 34.

(391) Groves v Bradley, [2010] SCCA No 337.

(392) 2010 FCA 123, 320 DLR (4th) 342 [Bell].

(393) RSC 1985, c C-42. Section 29 states that "[f]air dealing for the purpose of research or private study does not infringe copyright."

(394) 2004 SCC 13, [2004] 1 SCR 339.

(395) Bell, supra note 392 at para 12.

(396) Ibid at para 14.

(397) Ibid at para 18.

(398) Ibid at para 20.

(399) Ibid.

(400) Ibid at para 22.

(401) These included the purpose, the character of the dealing, alternatives to the dealing, the nature of the work and the effect of the dealing on the work.

(402) Bell, supra note 392 at paras 27-28.

(403) Ibid at para 29.

(404) Ibid at para 31.

(405) Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at paras 49-50, [2012] 2 SCR 326.

(406) 2010 FCA 221, 323 DLR (4th) 62 [ESA].

(407) Ibid at para 3.

(408) Copyright Act, supra note 393, s 3(1).

(409) ESA, supra note 406 at para 8.

(410) Ibid at para 18.

(411) Ibid.

(412) CMRRA-SODRAC Inc, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Cineplex Entertainment LP, Interveners, 2012 SCC 34 at paras 43-44, [2012] 2 SCR 231.

(413) Ibid at para 32.

(414) Ibid at para 5.

(415) 2010 BCCA 131, 317 DLR (4th) 271 [Nazmdeh].

(416) 2000 BCCA 357, 76 BCLR (3d) 217.

(417) Promulgated under the Court Rules Act, RSBC 1996, c 80.

(418) Nazmdeh, supra note 415 at para 44.

(419) Ibid at para 101.

(420) Ibid at para 102.

(421) Ibid at para 104.

(422) 2010 ONCA 84, 316 DLR (4th) 201 [Van Breda].

(423) Ibid at paras 1 & 70. The Muscutt test was developed by the "Muscutt quintent"--Muscutt v Courcelles (2002), 213 DLR (4th) 577, 60 OR (5th) 206 (Ont CA); Leufkens v Alba Tours International Inc (2002), 60 OR (3d) 54, 213 DLR (4th) 614 (Ont CA); Sinclair v Cracker Barrel Old Country Store Inc (2002), 60 OR (3d) 76, 213 DLR (4th) 643 (Ont CA); Gajraj v DeBernardo (2002), 60 OR (3d) 68, 213 DLR (4th) 651 (Ont CA).

(424) Ibid at paras 25-26, 38-39.

(425) Ibid at paras 50-69.

(426) Ibid at paras 69-70.

(427) Ibid at paras 71-72.

(428) Ibid at para 109.

(429) Ibid.

(430) Ibid.

(431) Ibid.

(432) Ibid.

(433) Ibid.

(434) Ibid.

(435) Ibid at paras 117, 120, 124, 140, 142.

(436) Ibid at paras 126, 148.

(437) Ibid at paras 129, 149.

(438) Club Resorts Ltd v Van Breda, 2012 SCC 17 at para 125, [2012] 1 SCR 572.

(439) 2010 BCCA 501, 70 CBR (5th) 198 [NA Steamships].

(440) SBC 2003, c 28.

(441) NA Steamships, supra note 439 at para 4.

(442) Ibid at para 10.

(443) Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28, s 10(e) [CJPTA].

(444) Ibid at para 12.

(445) Ibid at para 13.

(446) Ibid at para 19.

(447) Ibid at para 15.

(448) Ibid.

(449) Ibid at para 16.

(450) Ibid.

(451) 2010 BCCA 439, 324 DLR (4th) 1 [Downtown Eastside].

(452) Ibid at para 41.

(453) [1992] 1 SCR 236, 88 DLR (4th) 193 [CCC].

(454) Downtown Eastside, supra note 451 at para 18, quoting CCC, supra note 453 at 253.

(455) Ibid at para 66.

(456) Ibid at para 71.

(457) Ibid at para 72.

(458) Ibid at paras 81-84.

(459) 2012 SCC 45 at para 3, [2012] 2 SCR 524.

(460) 2010 ONCA 838, 103 OR (3d) 81 [Waterloo].

(461) SO 2002, c 24 Sched B.

(462) RSO 1990, c N1.

(463) Waterloo, supra note 460 at para 2.

(464) Ibid at para 24.

(465) Ibid at para 25.

(466) Ibid at para 26.

(467) 2010 ONCA 29, 98 OR (3d) 481 [Griffin].

(468) SO 2002, c 30, Sched A.

(469) 2007 SCC 34, [2007] 2 SCR 801.

(470) Griffin, supra note 459 at para 28.

(471) Ibid at para 31.

(472) Ibid at para 64.

(473) Ibid at para 41.

(474) Ibid at paras 34-38.

(475) Ibid at para 47.

(476) Ibid at para 50.

(477) Dell Canada Inc v Griffin, [2010] SCCA No 75.

(478) 2010 ONCA 673, 74 BLR (4th) 161 [Salah].

(479) SO 2000, c 3 [Wishart Act].

(480) Salah, supra note 478 at para 29.

(481) Ibid at para 7.

(482) Ibid at para 8.

(483) Ibid at para 19, quoting Wishart Act, supra note 479, s 3(3).

(484) Salah, supra note 478 at para 26.

(485) Ibid.

(486) Ibid at para 28.

(487) Ibid at para 29.

(488) Ibid at para 27.

(489) 2010 ONCA 850, 327 DLR (4th) 361 [80 Mornelle].

(490) Ibid at para 45.

(491) Ibid at para 28.

(492) 2006, SO 2006, c 11, Sched A.

(493) 80 Mornelle, supra note 489 at para 6.

(494) 40 OMBR 295, 2000 CarswellOnt 6077.

(495) 80 Mornelle, supra note 489 at paras 19-22.

(496) Ibid at para 21.

(497) [1983] 2 SCR 493, 3 DLR (4th) 1.

(498) 80 Mornelle, supra note 489 at paras 42-44.

(499) Ibid at para 44.

(500) Ibid at para 46.

(501) 1010 FCA 309, [1011] 1 FCR 374 [St. Michael Trust]

(502) Ibid at para 19; RSC 1985, c 1 (5th Supp).

(503) St. Michael Trust, supra note 501 at para 48.

(504) Ibid at para 59.

(505) Ibid at para 64.

(506) Ibid at para 62.

(507) Ibid at para 55.

(508) Ibid at para 71.

(509) Fundy Settlement v Canada, 2012 SCC 14 at para 17, [2012] 1 SCR 520.

(510) 2010 ONCA 394, 102 OR (3d) 312.

(511) Ibid at paras 2-8.

(512) Ibid at para 12.

(513) Ibid at para 21.

(514) 2003 NBCA 61, 230 DLR (4th) 587 (NB CA).

(515) 88 OR (3d) 796, 58 CCLI (4th) 197 (SCJ) [Hawkes].

(516) (2009), 94 OR (3d) 630, 73 CCLI (4th) 135 (SCJ) [Glassford].

(517) Ibid at paras 26-27.

(518) Ibid at para 29.

SPENCER ROBINSON, Brandon Heard and Spencer Robinson updated the article to reflect the latest developments of these cases at the time of writing.
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Title Annotation:p. 191-224
Author:McGoldrick, Kathryn; Wilkes, Julia; Heard, Brandon; Robinson, Spencer
Publication:University of Toronto Faculty of Law Review
Date:Mar 22, 2011
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