Law Times

Page 16 aPril 27, 2015 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Customs and Excise DUT Y R&D payments were, in entirety, in respect of goods in issue Appellant was in business of selling footwear. Respondent made seven decisions pursu- ant to s. 60(4) of Customs Act (Can.), concerning value for duty of footwear imported by appellant. Respondent deter- mined that payments made by appellant to vendor, its parent company, for research, devel- opment and design expenses (R&D payments) must be in- cluded, in their entirety, in price paid or payable for goods in is- sue and their value for duty for purposes of Act. Appellant ap- pealed. Tribunal dismissed ap- peal. Tribunal concluded that R&D payments, in entirety, were in respect of goods in is- sue and must be included in their value for duty purposes. Appellant appealed tribunal's decision. Appeal dismissed. Standard of review was reason- ableness. Appellant was asking Court of Appeal to re-weigh evidence before tribunal, which was beyond scope of court's role. Tribunal's decision was reasonable. It was reasonable for tribunal to conclude that R&D payments were, in entire- ty, in respect of goods in issue. Tribunal's description of legal test was correct. In determin- ing whether payment was in respect of certain goods, main question was whether there was sufficient link between payment and goods. Tribunal reasonably concluded that link between R&D payments and footwear imported by appellant was sufficient. Tribunal reason- ably concluded that research, design and development pro- cess was interrelated, whole of which was require to produce goods. Appellant's arguments as to how R&D costs were not in respect of goods were not ac- cepted. Tribunal did not err in its use of authorities. Decision was transparent, intelligible and justifiable. Conclusion fell with- in range of possible, acceptable outcomes that were defensible in respect of facts and law. Skechers USA Canada Inc. v. Canada (President of Border Services Agency) (Mar. 2, 2015, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and David G. Near J.A., File No. A-121-14) 250 A.C.W.S. (3d) 428. FEDERAL COURT Aboriginal Peoples HUNTING AND FISHING RIGHTS Interlocutory injunction to prohibit reopening of fishery granted In 2003, respondent Minister closed commercial herring fish- ery in Haida Gwaii, archipelago off west coast of British Colum- bia, due to concern about weak stocks. Fishery remained closed while annual stock assessments conducted by federal Depart- ment of Fisheries and Oceans (DFO) failed to demonstrate adequate level of abundance. However, in 2011, DFO intro- duced new method of calcu- lating abundance that lowered level at which fishery could be authorized. For 2014 season, Department of Fisheries and Oceans recommended against reopening on basis there was insufficient evidence of durable and sustained recovery. Minis- ter did not accept recommen- dation and authorized reopen- ing. Applicants, representatives of indigenous people of Haida Gwaii, whom Supreme Court of Canada had acknowledged had strong prima facie case of Aboriginal title to all of Haida Gwaii, and who had entered various interim agreements with federal and provincial governments regarding man- agement of lands, waters and re- sources of area, asked commer- cial fishermen not to fish that year. Fishermen agreed. In 2014, on strength of one forecast that indicated stocks would be above level at which fishery could be authorized, and notwithstand- ing evidence of decline in stocks between 2013 and 2014, and predicted decline between 2014 and 2015, DFO recommended limited fishery (harvest rate of 10 per cent) in 2015. Applicants commenced action and applied for interlocutory injunction to prohibit reopening of fishery on basis herring stocks, and their Aboriginal rights, would be en- dangered if commercial fishery allowed. Application allowed. Respondent acknowledged that regulation of fishery and duty to consult and accommodate Aboriginal groups constituted serious issues. High degree of uncertainty in forecasts, com- bined with fact stocks had de- clined, and were expected to decline further despite there having been no fishing, made it more likely irreparable harm would occur if commercial fishery opened in 2015. Poten- tial for real and serious risk of harm even greater when one considered that ability to fish roe herring central to appli- cants' culture, traditions and way of life, and that applicants had strong prima facie case of aboriginal title. Given that con- text, failure to consult mean- ingfully with applicants also constituted irreparable harm. Given agreements in place, as well as special conservation and ecological concerns, no ques- tion balance of convenience fa- voured applicants. Applicants should not be required to pro- vide undertaking as to damages in circumstances. Minister (or DFO) prohibited from opening commercial herring fishery for 2015 season. Haida Nation v. Canada (Min- ister of Fisheries and Oceans) (Mar. 6, 2015, F.C., Michael D. Manson J., File No. T-73-15) 250 A.C.W.S. (3d) 361. Charter of Rights FREEDOM OF EXPRESSION Denial of media's access to inmate for purpose of interview was reasonable Application by three media companies for judicial review of decision of prison warden who refused their request to inter- view inmate named OK. Ap- plicants created joint enterprise for purpose of interviewing OK to produce documentary film about his story. Request was de- nied because it would result in significant disruptions to insti- tution and it would endanger its security. Inmates would have to be confined to their living units for duration of interview and this would affect work, school and other program routines and if interview was conducted outside business hours it would disrupt inmates' access to lei- sure activities. This could spark unrest among inmate popula- tion. OK kept low profile at in- stitution but release of interview would result in additional secu- rity concerns within institution and safety concerns for OK. At issue were rights of applicants to freedom of expression under s. 2(b) of Canadian Charter of Rights and Freedoms and pub- lic's right to know. Application dismissed. Decision to deny applicants' access to OK for purpose of interview was rea- sonable and sufficient reasons were provided for that decision. Right to freedom of expression was not absolute and it was sub- ject to reasonable limits. In con- text of penitentiary this right had to be balanced against need to protect security of institution and safety of persons, which in- cluded staff, prison population and any particular inmate. Pen- itentiaries were heavily restrict- ed environments and members of public could only enter to visit inmates under very strict conditions. Penitentiary was not place where public had ex- pectation of exercising its right to freedom of expression. War- den was called upon to balance freedom of expression against security and safety imperatives. She had experience and exper- tise to make such discretionary decisions and her decision was owed significant deference. Canadian Broadcasting Corp. v. Warden of Bowden Institution (Feb. 13, 2015, F.C., Richard G. Mosley J., File No. T-1651-14) 119 W.C.B. (2d) 465. FUNDAMENTAL JUSTICE Revocation of pardon not unconstitutional Application by RJ for judicial review of decision of Parole Board to revoke his pardon for several crimes after it learned that he had been charged with several terrorism-related of- fences. Pardon was granted on April 24, 2009 for several crimes committed between 1997 and 2001. On April 22, 2013 RJ was charged with ter- rorism offences that allegedly occurred between April 1 and Sept. 25, 2012. Board obtained particulars of these crimes from R.C.M.P.. Board contacted RJ about proposed revocation and it gave him opportunity to make written submissions. RJ's lawyer made submissions and board rejected submissions and revoked pardon. Revoca- tion was made pursuant to s. 7(b) of Criminal Records Act (Can.), which allowed pardon to be revoked because person to whom it related was no longer 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. To subscribe, please call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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