Law Times

Page 13 Law Times • January 28, 2013 caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. SUPREME COURT OF CANADA Administrative Law JUDICIAL REVIEW Board not required to explicitly address all possible shades of meaning of provisions Applicant carried on business in general construction sector. Labour Relations Board concluded that applicant was employer under s. 176(1)(b) of Labour Relations Code (Alta.), and that applicant and union local had agreed to adopt some of provisions of registered employers' organization collective agreements to which union local was party. Board decided that, pursuant to s. 178 of code, applicant subject to terms of agreements. Applicant's application for judicial review of board's decision dismissed but its subsequent appeal was allowed. Employers' association's appeal to Supreme Court of Canada allowed. Board considered relevant provisions of code and facts presented by parties, interpreted code reasonably and came to reasonable conclusions. Court of Appeal focused on assertion that board failed to give proper consideration to interplay between ss. 176(1)(b) and 178 of code and to different meanings that could be ascribed to those provisions but board not required to explicitly address all possible shades of meaning. Board's decision, viewed as whole in context of record, reasonable. Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc. (Nov. 29, 2012, S.C.C., McLachlin C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34205) Decision at 198 A.C.W.S. (3d) 825 was reversed. 221 A.C.W.S. (3d) 248. Heydary-Caselaw_LT_Jan14_13.indd 1 Bankruptcy and Insolvency ARRANGEMENTS Orders issued by regulatory bodies may be provable claims in insolvency proceedings even if not quantified Pulp and paper company carried on industrial activities at several locations in province between 1905 and 2008. In December 2008, company announced closure of last remaining mill operation. Company experienced financial difficulties and placed itself under protection of Companies' Creditors Arrangement Act (Can.) (CCAA). Initial order extended and claims procedure order (CPO) issued for purpose of setting up claims procedure for company's creditors. Province, acting pursuant to Environmental Protection Act (Nfld. & Lab.), issued five Ministerial orders requiring company to perform, at its own expense, remediation actions with respect to sites where company previously carried on industrial activities. Province brought motion seeking declaration that orders affected by neither CPO nor CCAA proceedings. Company contested motion, asserting that orders stayed by initial order. Motion judge held that orders were financial in nature, should be treated as claims in CCAA proceedings and should be subject to compromise. Province's motion dismissed and application for leave to appeal dismissed. Province's appeal to Supreme Court of Canadadismissed. Orders issued by regulatory bodies may be provable claims in insolvency proceeding even if amounts involved not quantified at outset. Inenvironmental context, CCAA court must determine whether there exists environmental duty that will ripen into financial liability owed to regulatory body that issued order. Form of order not determinative; CCAA court must determine whether claim will be subject to claims process. To be considered claims that may These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. be subject to insolvency process, there must be debt, liability or obligation to creditor incurred as of specific time to which it must be possible to attach monetary value. Province identified itself as creditor by resorting to environmental protection enforcement mechanisms and environmental damage occurred before CCAA proceedings commenced. Real issue was whether orders not expressed in monetary terms could be translated into such terms. In context of environmental protection order, to determine whether contingent claim will be included in insolvency process, there must be sufficient certainty that regulatory body that triggered enforcement mechanism will ultimately perform remediation work and assert monetary claim. CCAA court'sassessment of facts indicated sufficient certainty that province would perform remediation work, particularly finding that orders were first step towards performance of remediation work by province. AbitibiBowater inc. (Arrangement relatif a) (Re) (Dec. 7, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33797) Decision at 190 A.C.W.S. (3d) 9 was affirmed. 221 A.C.W.S. (3d) 264. Communications Law BROADCASTING Proposed regime would entitle broadcasters to control simultaneous retransmission of works Canadian Radio-Television and Telecommunications Commission (CRTC) proposed, pursuant to mandate under Broadcasting Act (Can.) (BA), to establish regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings (BDUs) a fair value in exchange for distribution of programming services broadcast by those local television stations. Generally, regime would www.lawtimesnews.com permit private local television stations to negotiate with cable television service providers, or BDUs, for arrangementunder which cable television service providers would provide consideration for right to retransmit signals. BDUs disputed CRTC's jurisdiction to implement new regime on basis it conflicted with specific provisions of Copyright Act (Can.) (CA). CRTC referred question of jurisdiction to Federal Court of Appeal. Question answered in affirmative but BDU's appeal to Supreme Court of Canada allowed. No provisions in BA expressly granting CRTC jurisdiction toimplement proposed regime. CRTC could not find jurisdiction by relying on policy objectives. Broadly drafted basket clause in respect of regulation making authority or open-ended power to insert terms and conditions as deemed appropriate must be considered in context. None of specific fields for regulation in BA relate to creation of exclusive rights for broadcasters toauthorize or prohibit distribution of signals or programs or direct economic relationship between BDUs and broadcasters contemplated by proposed regime.Creation of such rights too far removed from core purposes intended by Parliament and from powers granted under BA. Proposed regime would conflictwith specific provisions in CA. Section 21(1) of CA grants broadcasters exclusive right to authorize, or not, another broadcaster to simultaneouslyretransmit signals but BDUs specifically excluded. Value for signal regime would effectively overturn s. 31 exception to copyright infringement for simultaneous retransmission by BDU of "work" carried in local signals. Proposed regime would entitle broadcasters, through deletion rights, to control simultaneous retransmission of works while CA specifically excludes retransmission from control of copyright owners, including broadcasters. CRTC's value for signal regime inconsistent with purpose of CA and falls outside scope of CRTC's licensing and regulatory jurisdiction under BA. Reference re The Broadcasting Act, S.C. 1991, c. 11 (Dec. 13, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34231) Decision at 199 A.C.W.S. (3d) 770 wasreversed. 221 A.C.W.S. (3d) 315. Employment PUBLIC SERVICE Reading of record indicated that whether position new or reclassified could be subject of reasonable disagreement Service Canada created position of services delivery manager at PM-05 level. Applicant deployed inlateral move to fill position without competition. Regional manager position created at PM-06 level to replace PM-05 position applicant occupied. Advertised appointment process was started to establish pre-qualified pool of candidates. Applicant applied but not considered because he failed one component of standardized test. He agreed to fill regional manager position in acting capacity and given retroactive PM-06 salary increase. He was then offered PM-05 position. Applicant complained to Public Service Staffing Tribunal that Deputy Head of Service Canada abused authority by not appointing him to regional manager position. He claimed decision to advertise based on erroneous view that position newly created and maintained that position was reclassification ofposition he had occupied. Tribunal dismissed complaint, finding that given breadth of discretion conferred by s. 33 of Public Service Employment Act (Can.), over appointment process, whether position newly created or reclassified was irrelevant. Applicant's application for judicial review dismissed but majority of Federal Court of Appeal 13-01-09 2:33 PM

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