Law Times

Page 12 June 10, 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 Crown IMMUNITY Parliament clearly intended to bind federal and provincial Crowns Access Copyright filed with Copyright Board of Canada, proposed tariffs relating to reproduction of published works in its repertoire by employees of all provincial and territorial governments. Governments of Provinces of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan ("applicants") argued that by virtue of s. 17 Interpretation Act (Can.) ("IA"), which states "No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment", they were immune from Copyright Act (Can.) ("CA"), and therefore not subject to proposed tariffs. Board concluded that Act, construed contextually, intended to bind Crown, thereby rejecting applicants' claim of Crown immunity. Applicants' application for judicial review dismissed. To rebut presumption of Crown immunity in s. 17 IA, there must be clear parliamentary intention to bind Crown or one must be irresistibly drawn, through logical inference, to conclusion there is intention to bind Crown. Board properly conducted search for parliamentary intention through contextual interpretation of Act. Purpose of CA is to encourage creativity and provide reasonable access to fruits of creative endeavour. Section 12 of CA sets out exceptions that quite explicitly relate or apply to federal and provincial Crown. Many exceptions very detailed and subject to conditions which would be illogical in absence of clear intent to otherwise bind Crown. Although Act does not contain "expressly binding" clause, one is irresistibly drawn to conclusion that Parliament clearly intended, by express language of CA and through logical inference, to bind federal and provincial Crowns. Reprographic Reproduction 2005-2014, Re (Apr. 3, 2013, F.C.A., Johanne Gauthier J.A., K. Sharlow J.A., and Robert M. Mainville J.A., File No. A-11912) 225 A.C.W.S. (3d) 1102. Industrial and Intellectual Property PATENTS Appellant failed to demonstrate Minister's safety concerns not bona fide Appellant appealed dismissal of judicial review application. Appellant brought application for judicial review of respondent Minister's treatment of its submission for notice of compliance ("NOC") for omeprazole magnesium tablets. Judge found that application was brought outside applicable limitation period and that there was no merit to motion to extend time in which application could be commenced. Judge found that appellant did not have vested right to NOC. Appeal dismissed. Judge did not err in finding that appellant's application was subject to 30-day filing requirement set out in Federal Courts Act (Can.). There was no extricable error of law and palpable and overriding error was not demonstrated. Judge's refusal to extend time-limitation was discretionary decision that was subject to deference and judge made no reviewable error. Judge did not err in finding that appellant did not have vested right to NOC. Food and Drug Regulations (Can.), could not be interpreted in such way that Minister could be compelled to issue NOC even if she was not satisfied that drug in question was safe and effective. Completion of Minister's examination was ongoing event. Minister had discretion to revisit application on patent hold when she deemed it necessary to reconsider safety and efficacy of drug. Appellant failed to demonstrate that Minister's safety and efficacy concerns were not bona fide. Doctrine of legitimate expectation did not confer substantive rights of nature appellant sought. Apotex Inc. v. Canada (Minister of Health) (Dec. 7, 2012, F.C.A., K. Sharlow J.A., Eleanor R. Dawson J.A., and Johanne Trudel J.A., File No. A-452-11) Decision at 208 A.C.W.S. (3d) 567 was affirmed. 225 A.C.W.S. (3d) 1103. Social Welfare CANADA PENSION PLAN Lack of knowledge not recognized as incapacity Applicant was diagnosed with schizophrenia in 1980s and suffered from serious conditions resulting from multiple subsequent injuries. Applicant was granted disability pension. Section 42(2)(b) of Canada Pension Plan deemed applicant to have become disabled 15 months before time of making application. Applicant sought earlier date of disability. Board found applicant never lacked capacity These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. to form intention to make applicant for benefits. Board concluded applicant's failure to apply earlier was because applicant lacked knowledge that applicant might be entitled to one. Application for judicial review was dismissed. Board carefully considered evidence. Board made no reviewable error in finding main reason applicant did not apply earlier was due to applicant's lack of knowledge that applicant was entitled to disability pension. Lack of knowledge was not recognized as incapacity. McDonald v. Canada (Attorney General) (Feb. 14, 2013, F.C.A., Johanne Trudel J.A., K. Sharlow J.A., and Wyman W. Webb J.A., File No. A-287-11) 225 A.C.W.S. (3d) 1168. SUPREME COURT OF CANADA Charter of Rights FUNDAMENTAL JUSTICE Likely to have been born alive standard consistent with facilitating investigation Trial judge acquitting accused of concealing body of child who died before, during or after birth contrary to s. 243 Criminal Code. Trial judge holding concept of child dying before birth unconstitutionally vague as too difficult to tell when on gestational spectrum fetus becomes child. Trial judge severing word "before" from s. 243 as constitutional remedy, acquitting accused as no evidence of when child died. Court of Appeal ordering new trial, holding "chance of life" test applied with sufficient certainty to determine when fetus became child for purpose of s. 243. Accused's appeal to Supreme Court dismissed. Accused's liberty interest engaged by risk of incarceration, unnecessary to consider arguments about infringement on autonomy, fundamental personal choices. Fetus becomes child for purpose of s. 243 when, before birth, was likely to have been born alive. Focus on whether miscarriage became stillbirth for application of s. 243 before birth. Section 243 not unconstitutionally vague in application to child who died before birth as only captured disposal of remains of children likely to be born alive. Likely to have been born alive standard consistent with purpose of s. 243 of facilitating investigation of other Criminal Code provisions. Dependence on expert medical evidence to know whether child likely to be born alive not fatal to constitutionaliwww.lawtimesnews.com ty of provision. Expert evidence would be required even if s. 243 provided detailed description of precise moment on gestational spectrum when miscarriage became still birth. R. v. Levkovic (May. 3, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., and Moldaver J., File No. 34229) 106 W.C.B. (2d) 51. FEDERAL COURT Administrative Law JUDICIAL REVIEW Applicant made no efforts to seek clarification Application by former employee for judicial review of respondent government's decision letter stating he had to repay $58,402 overpayment. Applicant was employed with respondent for 30 years before being advised his position was surplus and would end on December 31, 2009. Applicant was given offer to look for other public service work or take cash settlement, and chose latter. Applicant was offered 26 weeks of pay in lieu of notice and 28 weeks of severance pay and benefits. Applicant was required to sign settlement agreement that contained confidentiality provisions and restrictions on future employment and contract work. Applicant did not sign acceptance letter as he had assumed he would be able to pursue contract work. Respondent paid 26 weeks of notice pay despite not having received signed settlement agreement but did not realize payment had been made and contacted applicant to request he sign letter in order to receive pay. Applicant attempted to negotiate amended letter, which was rejected, or additional six to eight months of salary in exchange for original letter, which was never accepted. Respondent decided to pay applicant his 26 weeks of pay anyway and did so, not realizing it already had. When respondent later realized error, it sent March 26, 2012 letter, of which applicant was seeking judicial review, and advised him he had received $58,402 overpayment, which was debt to Crown and enforcement measures would begin in 30 days. Applicant submitted he thought payment was received in acceptance of his offer to sign original settlement agreement in exchange for additional six to eight months of pay and had relied on that in turning down contract work. Respondent replied that payment was administrative error and had to be repaid. Application dismissed. As overpayment occurred long after applicant's employment ended and was not related to events that occurred within his employment, he did not have access to grievance process under Public Service Labour Relations Act (Can.), and court had jurisdiction to seek review. While respondent sent second letter after applicant made submissions, March 26, 2012 letter was clear and not an interim step, so was reviewable. Applicant complained he was treated unfairly because he was not given enough time to decide whether he wanted to seek alternate employment or receive cash settlement, but this had nothing to do with overpayment. Respondent did not make any clear and unambiguous promise that could lead applicant to reasonably believe second payment resulted from further negotiated agreement. Furthermore, when applicant received first payment without signing agreement and was later told he had to sign agreement to be paid, he should have realized something was amiss, yet made no efforts to seek clarification or advise respondent he had already been paid. Salie v. Canada (Attorney General) (Feb. 4, 2013, F.C., Anne Mactavish J., File No. T-815-12) 225 A.C.W.S. (3d) 1001. REMEDIES Applicant's removal from Canada legitimate and he had no rights here Prosecution in home country. Application for judicial review seeking order of mandamus directing Prime Minister and ministers to make decision on his request to have them express concern about criminal proceedings against him in China. Applicant was citizen of China who had never been permanent resident or citizen of Canada. Applicant came to Canada as visitor in 1999, after being charged with fraud in China, and sought refugee status. Applicant was excluded for serious, non-political crime and his applications for judicial review, pre-removal risk assessment and stays of removal were unsuccessful. Applicant was removed to China, where he was tried and convicted for fraud and sentenced to 15 years' imprisonment. Applicant claimed he was detained prior to trial and denied contact with family, medication and had limited contact with his lawyer and disclosure. Applicant's counsel wrote to Prime Minister with request, on basis applicant was being denied basic human rights, and Executive Correspondence

• Cover