Law Times

Page 14 March 17, 2014 • Law TiMes www.lawtimesnews.com SUPREME COURT OF CANADA Administrative Law JUDICIAL REVIEW Resolution of unclear language in home statute generally best left to decision-maker In 2008, appellant entered into settlement agreement with On- tario Securities Commission ("OSC") whereby she consented to making of order in public in- terest against her. In 2010, ap- pellant notified that Executive Director of British Columbia Se- curities Commission ("BCSC") applying for order in public inter- est against her under s. 161(6)(d) of Securities Act (B.C.). Section 161(6)(d) empowers BCSC to bring proceedings in public in- terest against persons who have agreed with another jurisdic- tion's securities regulator, by way of settlement agreement, to be subject to regulatory action. Ap- pellant argued no order could be made because six-year limitation period in s. 159 of Act had ex- pired. BCSC made order against appellant which was essentially identical to order made by OSC. BCSC implicitly interpreted s. 159 such that "event" that trig- gered six-year limitation period was date of settlement agreement rather than date misconduct oc- curred. Court of Appeal upheld BCSC's decision and further ap- peal dismissed. Correct standard of review was reasonableness. Meaning of "the events" in s. 159 is question of statutory interpre- tation confined to particular con- text. No question of law of central importance to legal system as whole or that fell outside BCSC's specialized area of expertise. Possibility that other provincial and territorial securities com- missions may arrive at different interpretations of own statutory limitation periods not provid- ing basis for correctness review. Resolution of unclear language in administrative decision-maker's home statute generally best le to decision maker. Both interpreta- tions found some support in text, context and purpose of statute and both interpretations were reasonable. Court must defer to any reasonable interpretation adopted by BCSC even if other reasonable interpretations exist. Administrative decision-maker has discretion to resolve statu- tory uncertainty by adopting any interpretation that statutory language can reasonably bear. Appellant did not demonstrate that BCSC's interpretation was unreasonable. erefore, no basis for court to interfere on judicial review. British Columbia (Securities Com- mission) v. McLean (Dec. 5, 2013, S.C.C., LeBel J., Fish J., Roth- stein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34593) Decision at 209 A.C.W.S. (3d) 189 was affirmed. 235 A.C.W.S. (3d) 290. FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Only Tax Court could grant relief sought of setting aside or vacating assessments Taxpayer was Canadian corpo- ration that provided investment advice to Canadian clients and it marketed international stock by foreign-related entities. Taxpayer paid foreign-related entities fees to compensate them for services. Minister of National Revenue assessed taxpayer under Part XIII of Income Tax Act (Can.), concerning fees it paid to private Hong Kong corporation for pe- riod between December 2002 to December 2008 inclusive. Fol- lowing assessments, taxpayer brought application in Federal Court for judicial review, alleging that Minister abused discretion by issuing assessments for Part XIII tax for so many years. Min- ister brought motion to strike out judicial review application. Pro- thonotary found that application raised independent administra- tive law ground of review and was properly within Federal Court and dismissed application. Min- ister brought motion to quash prothonary's decision, but was unsuccessful. Minister appealed. Appeal allowed. ree things qualified as obvious fatal flaw that warranted striking out of notice of application for judicial review. First, notice of application failed to state cognizable administrative law claim that could be brought in Federal Court. Second, Fed- eral Court was not able to deal with administrative law claim by virtue of s. 18.5 of Federal Courts Act (Can.), or some other legal principle. ird, Federal Court could not grant relief sought. Essential character of taxpayer's notice of application for judicial review was attack on legal validi- ty of assessments. Taxpayer failed to state cognizable administra- tive law claim. In circumstances, Minister did not exercise any discretion that was independent of assessments and there was no discretion that could be abused. Tax Court could consider wheth- er Minister was legally entitled to assess Part XIII tax for years in question and there was no rea- son why it would not have been possible to deal with tax liabil- ity issues related to assessments through regular appeal process in Tax Court. Federal Court was not able to grant the relief sought. Only Tax Court could grant relief sought of setting aside or vacat- ing assessments. JP Morgan Asset Management (Canada) Inc. v. Minister of Na- tional Revenue (Oct. 24, 2013, F.C.A., K. Sharlow J.A., David Stratas J.A., and D.G. Near J.A., File No. A-532-12) Decision at 224 A.C.W.S. (3d) 509 was re- versed. 235 A.C.W.S. (3d) 288. Civil Procedure DISCOVERY Report subject to both solicitor-client privilege and public interest privilege Appellant was criminal lawyer who complained to Canadian Ju- dicial Council ("CJC") about con- duct of Ontario Superior Court Judge alleging that judge had been guilty of serious miscon- duct during murder trial. CJC en- gaged lawyer, professor, member of Ontario Bar and distinguished criminal law scholar. Relying on lawyers's report, chairperson of CJC dismissed appellant's com- plaint. Appellant brought appli- cation for judicial review. CJC refused to disclose lawyer's re- port. Appellant brought motion to compel disclosure of report. Prothonotary granted motion. CJC brought motion to set aside prothonotary's decision. Judge allowed motion, finding that report was subject to both solic- itor-client privilege and public interest privilege. Appellant ap- pealed judge's decision. Appeal dismissed. Per Evans J.A.: Report was intended to be confiden- tial. CJC did not subsequently waive confidentiality. Inquiring into allegations in order to assist chairperson in making decision on whether to refer complaint to hearing or dismiss it called for analysis of documents and tapes that required skills and knowl- edge of lawyer. It could be in- ferred from nature of allegations into which lawyer was to conduct inquiries that role involved legal and factual analysis that required skills and knowledge of lawyer. When lawyer was engaged to as- sist chairperson in deciding how to proceed with complaint he was engaged in capacity as lawyer and report was subject to solic- itor-client privilege. Per Main- ville J.A. (concurring): Report of lawyer was subject to public interest privilege. CJC had to en- sure that examination respected underlying purpose of constitu- tional principle of judicial inde- pendence. Decision that report should not be disclosed based on public interest privilege was rea- sonable. Any resulting damage to public interest in due administra- tion of justice was minimal. Slansky v. Canada (Attorney Gen- eral) (Sep. 9, 2013, F.C.A., John M.Evans J.A., David Stratas J.A., and Robert M. Mainville J.A., File No. A-497-11) Decision at 211 A.C.W.S. (3d) 288 was affirmed. 235 A.C.W.S. (3d) 350. Immigration HUMAN SMUGGLING Respondents knew that smuggled persons did not have required documentation Immigration and Refugee Board found that respondents were en- gaged in people smuggling and were inadmissible to Canada pursuant to s. 37(1)(b) of Im- migration and Refugee Protec- tion Act (Can.). Board relied on s. 117(1) of Act to interpret s. 37(1)(b) and found that foreign national may be excluded under s. 37(1)(b) even if he or she did not expect or receive financial or other material benefit when engaging in people smuggling. Respondents brought applica- tions for judicial review and ap- plications were granted. Minister of Public Safety and Emergency Preparedness appealed. Appeals allowed. Standard of review of decisions of board with respect to interpretation of s. 37(1)(b) of Act was reasonableness. Board acted reasonably by referring to s. 117(1) of Act to define concept of people smuggling in s. 37(1)(b) without requirement of financial or material gain or advantage. Section 37(1)(b) of Act did not 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 BestCase and other electronic resources from carswell.com. 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