Law Times

Page 14 March 25, 2013 �� Law Times ��� 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. FEDERAL COURT OF APPEAL Railways RATES Federal court erred in law by applying correctness standard instead of reasonableness This was appeal of decision quashing order-in-council. Railway company and coal company entered into confidential transportation contract with respect to transportation of coal that included fuel surcharge from published tariff. Railway company gave notice to customers that it would be reducing fuel surcharge in accordance with new tariff but it refused to apply new tariff to coal company���s contract. Coal company made application to Canadian Transportation Agency for order establishing reasonable fuel surcharge. Railway company successfully brought motion for order dismissing application on basis that agency lacked jurisdiction. At request of coal company���s trade association, governor-incouncil issued order-in-council rescinding agency���s decision. Railway company applied for judicial review of order-incouncil. Federal Court applied standard of review of correctness. Application for judicial review was granted and orderin-council was quashed. Appeal allowed. Federal Court judge correctly characterized trade association���s petition to be request that agency review tariff for reasonableness without regard to confidential conflict. Judge correctly characterized nature of governor-in-council���s decision. Effect of governorin-council���s decision was to impugn agency���s factual determination that coal company���s application sought order requiring new fuel surcharge rates to apply to confidential contract for carriage of its traffic by railway company. Governorin-council substituted its view of nature of coal company���s application for that of agency. In governor-in-council���s view, coal company���s application was for benefit of all shippers. Agency incorrectly framed issue before it. Characterization by governor-in-council of nature of coal company���s application to agency was question of fact or question of mixed fact and law with factual component being predominant. Decision was to be reviewed on standard of reasonableness. Federal court erred in law by applying correctness standard. Applying reasonableness standard of review to decision of governorin-council, decision was reasonable. There was basis upon which governor-in-Council could reasonably conclude that coal company���s application was for benefit of all shippers subject to alleged charge. Decision was supported by evidence and by reasons and it fell within range of outcomes that were defensible in respect of facts and law. Federal Court Judge erred by entering into interpretive exercise of agency���s home statute. Canadian National Railway v. Canada (Attorney General) (Nov. 2, 2012, F.C.A., Dawson, Gauthier and Stratas JJ.A., File No. A-438-11; A-440-11) Decision at 208 A.C.W.S. (3d) 210 was affirmed. 223 A.C.W.S. (3d) 247. FEDERAL COURT Administrative Law JUDICIAL REVIEW Presence of jurisdictional issue not exceptional circumstance to permit judicial review Application by R.C.M.P. member for judicial review of adjudication board���s decision on preliminary motion that applicant was served forthwith with notice of hearing. Complaint was made against applicant and, after investigation, it was decided matter would proceed to formal disciplinary proceedings. There was no dispute proceedings were pursued within one-year limitation period. Board was composed to hear matter in Nov. 2010, but applicant was not served with notice of hearing for another ten and one-half months. Board held two-day hearing in April 2012, at which applicant brought preliminary motion arguing board did not have jurisdiction to hear dispute because of time lapse between commencement of proceedings and service of notice. Section 43(4) of Royal Canadian Mounted Police Act required service be forthwith. Board agreed it would lose jurisdiction if s. 43(4) had not been complied with but found Parliament chose to provide flexible timelines by using word ���forthwith��� rather than specific timeline. Board found applicant���s disciplinary matters were sensitive and complicated and AOR assigned to his case unexpectedly took medical leave, and that circumstances provided valid reason for delay. Board concluded forthwith meant as soon as reasonably practicable in circumstances and applicant had complied These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. with this requirement. Respondent argued application for judicial review was premature; applicant argued decision was final and he should not have to submit to disciplinary proceedings if board lacked jurisdiction. Application dismissed. Parties could only proceed to judicial review after all remedial recourses in administrative process had been exhausted. Mere presence of jurisdictional issue was not an exceptional circumstance to permit judicial review before process was complete. It was not clear commissioner under appeal scheme in Act could not hear appeal from jurisdictional issue; s. 45.14(3) granted general authorization for commissioner to hear any ground of appeal. For court to rule that commissioner lacked jurisdiction to hear appeal and allow applicant to proceed directly to judicial review would be unjustified interference with commissioner���s expertise and appeal scheme under Act. Black v. Canada (Attorney General) (Nov. 8, 2012, F.C., Russell J., File No. T-915-12) 223 A.C.W.S. (3d) 238. Civil Procedure PRELIMINARY QUESTION OF LAW No agreement on question to be determined Motion by defendant to have court determine preliminary question of law. Defendant wanted determination of whether plaintiff was interested person pursuant to s. 60(1) of Patent Act (Can.), with respect to patent claims other than 10, 18 and 23. Plaintiff commenced action for declaration defendant���s ���446 patent was invalid and plaintiff ���s sildenafil tablets would not infringe patent. Defendant denied plaintiff had standing to sue. Prior to litigation, defendant had disclaimed certain patent claims and provided unilateral covenant not to sue plaintiff on claims other than 10, 18 and 23, so argued plaintiff had no standing as interested person to impeach other claims. Motion dismissed. There was no agreement on question to be determined and plaintiff vigorously contested motion. Regardless of answer, litigation would continue on at least three claims and defendant had not shown that reducing number of claims would reduce expense, time, amount of evidence or complexity. Proposed question was difficult and may not be able to be readily answered in few days remaining before trial. Further delay would prejudice plaintiff, who wanted to market its product. Apotex Inc. v. Pfizer Ireland www.lawtimesnews.com Pharmaceuticals (Nov. 8, 2012, F.C., Zinn J., File No. T-772-09) 223 A.C.W.S. (3d) 65. ONTARIO CIVIL CASES Civil Procedure DISCOVERY Aggregate assessment was not tallying of individual claims but communal assessment Plaintiffs were former franchisees and were representative plaintiffs in class action. Plaintiffs claimed price maintenance conspiracy and breach of contract and argued franchisees were charged exorbitant prices for food and other supplies for restaurants. Defendant Quiznos were franchisors and defendant GFS were suppliers. Plaintiffs brought motion for vice-president of Quiznos and vice-president of GFS to answer questions refused on examinations for discovery. Plaintiff sought order requiring GFS to provide further and better affidavit of documents. Quiznos and GFS brought crossmotions to require owners of plaintiff former franchisees to answer questions refused. Very few questions needed to be answered. Chart set out specific questions and which questions required answering. Motion was adjourned so far as question might touch exclusively on matter of privilege. There was insufficient evidentiary record to determine merits of assertions of privilege. Plaintiffs achieved certification on top-down set of common issues and would mutate common issues into disproportionate and unmanageable bottom-up with product-by-product questioning. Material and relevant questions did not involve bottomup inquiry. Common issue about mark-ups and sourcing fees involved inquiries about top-down systemic approach by defendants to charge markups and sourcing fees. Focus of action was about systemic overcharging not individual product overcharging. It was inconsistent for plaintiffs to say records of sales to 450 franchisees were needed to prove damages as common issue when it would be bottom-up approach. Some questions purporting to be about aggregate damages were improper and reflected misapprehension about nature of aggregate damages. Aggregate assessment was not tallying of individual claims but was communal assessment of totality of claims where underlying facts permitted it to be done with reasonable accuracy. Some of questions were irrelevant as concerning events after cut-off of class period end-date. For already produced documents if there was readily available copy in excel format then document was to be produced again in excel format. 2038724 Ontario Ltd. v. Quizno���s Canada Restaurant Corp. (Nov. 21, 2012, Ont. S.C.J., Perell J., File No. 06-CV-311330CP) 223 A.C.W.S. (3d) 49. Contracts PERFORMANCE AND BREACH Onus on respondent to prove allegation that receipts fraudulent Husband and wife had four children. Three of four children moved away from family farm. Husband died intestate in 1997. Applicant fourth child remained on farm with mother. Mother executed will April 2000. Mother and applicant executed agreement May 2001. Agreement purportedly a written partnership to carry on farm business. Agreement included provisions for applicant���s buyout of mother���s interest in farm. Agreement required applicant pay $9,000 annually for ten years. In event of mother���s death, 50 per cent of any balance then owing forgiven absolutely. Agreement witnessed by mother���s lawyer. Mother died in May 2011. Applicant���s brother obtained certificate of appointment of estate trustee. Brother did not honour May 2011 agreement. Applicant commenced application against brother for enforcement of May 2011 agreement. Applicant���s position was he had paid $81,000 pursuant to agreement. Evidence included receipts for $80,000. Final payment of $9,000 offered to respondent but refused. Payment in trust with applicant���s counsel. Respondent opposed application on bases applicant made no payments and receipts fraudulent; and applicant breached agreement regarding how farm run, expenses paid and income shared. Centre of Forensic Sciences (���CFS���) examined receipts. CFS determined mother probably wrote seven of nine receipts; and other two inconclusive. Ontario Provincial Police found no evidence to support charges against applicant. Application allowed. Existence of agreement not at issue. Where no evidence to contrary, receipts were satisfactory proof applicant paid $81,000 under buyout provision. Applicant would have made final payment, if accepted by respondent. Onus on respondent to prove clearly and distinctly the

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