Law Times

Law Times • January 7, 2019 Page 13 www.lawtimesnews.com Supreme Court of Canada Administrative Law PREROGATIVE REMEDIES Certiorari Not necessary to impose presumptive notice requirement where police sought production order in relation to media Justice issued ex parte produc- tion order directing media com- pany and reporter to produce certain documents and data pertaining to communications with or concerning accused, individual charged but not ar- rested yet for six terrorism of- fences and who was believed to have left Canada to join ISIS in Iraq or Syria. Reporter wrote and published three articles for media company about accused's involvement with ISIS, which were based in large part on com- munications between reporter and accused through text mes- saging service. Media company and reporter's ("applicants") un- successfully challenged produc- tion order and successfully had most of material in sealed In- formation To Obtain unsealed. Applicants appealed. Appeal dismissed. There was reason- able basis for issuing production order, and de novo consider- ation of framework in Canadian Broadcasting Corp. v. Lessard favoured issuance of produc- tion order. There was no basis for recognizing presumed chill- ing effect whenever state sought production order related to media. Where materials sought could reasonably be expected to have higher degree of probative value, case in favour of granting production order was strength- ened. Notion that police should be denied production order unless they could demonstrate that order was necessary to se- cure conviction could not be sustained. It was not necessary to impose presumptive notice requirement in situations where police sought production order in relation to media. Applicants did not point to any information not before authorizing judge that could reasonably have af- fected decision to issue produc- tion order. Balancing of media's right to privacy in gathering and disseminating news and of state's interest in investigating and prosecuting crime favoured issuance of production order. R. v. Vice Media Canada Inc. (2018), 2018 CarswellOnt 19988, 2018 CarswellOnt 19989, 2018 SCC 53, 2018 CSC 53, Wag- ner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellOnt 3901, 2017 ONCA 231, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.). Equity RELIEF FROM UNCONSCIONABLE TRANSACTIONS Unconscionable or improvident transactions Deprivation element did not require that disputed benefit be conferred directly by applicant on respondent After their divorce applicant and deceased agreed that she would maintain his life insurance poli- cy and then receive proceeds on his death. Following divorce, de- ceased established relationship with respondent and contrary to oral agreement, deceased re- voked applicant's designation and designated respondent as irrevocable beneficiary. Trial judge ruled that there was oral agreement between former spouses, which took form of equitable assignment and that applicant should receive life in- surance proceeds. Respondent appealed. Appeal was allowed. Court of Appeal ruled that trial judge erred in failing to hold that there was valid juristic rea- son for respondent's receipt of policy proceeds and therefore in holding that proceeds were im- pressed with trust in applicant's favour based on unjust enrich- ment. Absent equitable assign- ment, provisions of Insurance Act, pursuant to which respon- dent was designated irrevocable beneficiary, operated to provide valid juristic reason for her re- ceipt of insurance proceeds, making finding of unjust enrich- ment unavailable. Applicant ap- pealed. Appeal allowed. Reme- dial constructive trust should be imposed for applicant's benefit. Applicant could establish that respondent was enriched and she herself was correspondingly deprived. Deprivation element did not require that disputed benefit be conferred directly by applicant on respondent. Us- ing straightforward economic approach focusing on what ap- plicant actually lost, it could be seen that she was deprived of right to receive entirety of pol- icy. Applicant upheld her end of bargain but did not get what she contracted for and from that perspective it was clear that respondent's enrichment came at applicant's expense. Because respondent received benefit that otherwise would have accrued to applicant requisite correspon- dence existed. There was no jus- tification in law or equity for fact that respondent was enriched at applicant's expense. Beneficiary designation made pursuant to ss. 190(1) and 191(1) of Insurance did not provide any reason in law or justice for respondent to retain disputed benefit notwith- standing applicant's prior con- tractual right to remain named as beneficiary and receive pro- ceeds. Nothing in Insurance Act could be read as ousting com- mon law or equitable rights that persons other than designated beneficiary may have in policy proceeds. Constructive trust was appropriate as personal remedy would be inadequate. Moore v. Sweet (2018), 2018 CarswellOnt 19478, 2018 Car- swellOnt 19479, 2018 SCC 52, 2018 CSC 52, Wagner C.J.C., Abella J., Moldaver J., Karakat- sanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 Carswel- lOnt 2958, 2017 ONCA 182, G.R. Strathy C.J.O., R.A. Blair J.A., and P. Lauwers J.A. (Ont. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Minister's delegate did not unreasonably apply internal policy Claimant lived in Philippines for most of his life but was disabled as result of work accident after he moved to Canada. When claimant first applied for Cana- da Pension Plan (CPP) disability pension, he answered question of whether he had worked in another country in negative. Application was denied on basis of failure to meet contributory requirements as only Canadian contributions were taken into account. Delegate of Minister of Employment and Social Devel- opment concluded that claim- ant was not entitled to CPP dis- ability pension from date of first application. Federal Court judge dismissed claimant's application for judicial review. Judge found no evidence that claimant con- tacted Minister at time of first application to advise of his work in other country. Judge found claimant's explanation for an- swering question of whether he had worked in another country in negative to be unreasonable. Claimant appealed. Appeal dis- missed. It was not unreasonable for Minister's delegate to con- clude that there had been no ad- ministrative error with respect to his first application. Decision was not unintelligible and it did not fail to explain why first and second applications were treated differently. There was evidence that Minister's officials were aware of claimant's work history in Philippines at time second ap- plication was processed, but not at time of first application. Min- ister's delegate did not unreason- ably apply internal policy as to unsupported verbal allegations of administrative error. It was not unreasonable for Minister's officials to conclude that resi- dence in Philippines and state- ment that no work had been per- formed in that country did not require referral to International Operations. Quiano v. Canada (Attor- ney General) (2018), 2018 Car- swellNat 7100, 2018 FCA 216, J.D. Denis Pelletier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 6052, 2017 CarswellNat 6799, 2017 FC 977, 2017 CF 977, Sandra J. Simpson J. (F.C.). Federal Court Public Law SOCIAL PROGRAMS Employment insurance Determination of case turned on when benefit period commenced not when payments commenced Applicant long-tenured em- ployee was laid off after 13 years 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. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. CASELAW 2019 CANADIAN LAWYER LEGAL FEES SURVEY Survey closes January 28 Complete the survey at canadianlawyermag.com/surveys for a chance to win a $200 Amazon gift card. 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