The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50357
law Times • July 12, 2010 CaseLawLaw SUPREME COURT OF CANADA Environmental Law ENFORCEMENT All federal laws of general application respecting environmental protection apply in so far as not inconsistent with James Bay and Northern Quebec Agreement In 1975, governments of Canada and Quebec and Cree and Inuit communities signed James Bay and Northern Que- bec Agreement, which estab- lished governance scheme and created framework governing many aspects of life in ter- ritory, including aboriginal economic and social devel- opment and preservation of natural environment. Section 2.5 of agreement provides that agreement paramount over all other laws of general applica- tion that are inconsistent. Sec- tion 22 of agreement sets out comprehensive procedures for environmental impact assess- ments. Constitutional jurisdic- tion under which project falls determines whether provincial or federal assessment will be conducted. Section 22.6.7 pro- vides that "a project shall not be submitted to more than one impact assessment and review procedure unless such project falls within the jurisdictions of both Quebec and Canada". In such cases, assessments may be combined with "mutual agree- ment" of parties. Company intended to open and oper- ate mine in James Bay area of Quebec, "Category III" lands in agreement, area where agree- ment recognizes Quebec's right to regulate natural resource development subject to s. 22. Proponent submitted infor- mation concerning development proposed to administra- tor responsible for "matters respecting provincial jurisdic- tion". Although provincial administrator transmitted in- formation to evaluating com- mittee for recommendations regarding extent of impact as- sessment and review, it alone decided scope of assessment and directed proponent ac- cordingly. Proponent provided information about potential environmental and social im- pacts which acknowledged sig- nificant impact on fish habitat. This information transmitted by provincial administrator to provincial review committee and Cree Regional Authority. Federal officials concluded that project's impact on fisheries, matter within exclusive federal jurisdiction, engaged s. 35(2) of Fisheries Act (Can.) ("FA"), and required comprehensive study pursuant to Canadian Environmental Assessment Act ("CEAA") and Regulations. They advised Cree that study would be conducted under CEAA rather than federal as- sessment procedure provided for in s. 22 of Agreement. On application by Cree, Quebec Superior Court declared that only provincial environmental assessment applicable. Court of Appeal set aside that deci- sion, concluding that CEAA, in conjunction with federal FA, triggered federal environ- mental assessment. Substitut- ing federal review procedure in Agreement for one in CEAA, court held that Agreement par- amount in face of practical and operational inconsistencies. Court held that provincial re- view procedure under s. 22 of agreement also applied. Appeal dismissed. Mining of non-re- newable mineral resources falls within provincial jurisdiction but fisheries aspect of project is federal. Effect of agreement is that under s. 22.2.3, all fed- eral laws of general applica- tion respecting environmental protection apply in so far as not inconsistent with agree- ment. CEAA is federal law of general application respecting environment. Once project ap- proved by provincial adminis- trator, proponent has to apply to federal Minister of Fisher- ies for s. 35(2) fisheries per- mit. Prior to grant of permit, CEAA assessment required. Mine at issue covered by s. 3 of federal Comprehensive Study List Regulations and s. 16(a) of Schedule which means CEAA assessment must comply with "comprehensive study" provi- sions which, in turn, require public consultation and partic- ipation. Agreement specifically provides for processes outside those established by agree- ment. It cannot, therefore, be inconsistent with Agreement to require mine promoter to fol- low them. Section 22.7.5 spe- cifically preserves application of federal "impact assessment review procedure": "Nothing ... shall be construed as impos- ing an impact assessment re- view procedure by the Federal Government unless required PAGE 17 COURT DECISIONS ainmaker_LT_June2_08.indd 1 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. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. by Federal law or regulation". Quebec Court of Appeal erred in substituting agreement pro- cedure for CEAA procedure. CEAA procedure, however, must be applied by federal government in way that fully respects Crown's duty to con- sult Cree on matters affecting agreement rights. In addition, CEAA allows responsible feder- al authority to collaborate with agreement bodies to promote uniformity and harmonization in assessment of environmen- tal effects at all levels of gov- ernment. Federal Minister not bound by agreement to issue s. 35(2) fisheries permit follow- ing approval of mining proj- ect by administrator. Attorney General of Quebec properly conceded that federal fisher- ies permit required. Moreover, nothing in agreement relieves proponent from compliance with ordinary procedures gov- erning issuance of such permit. Autonomy of federal Fisheries Minister preserved. Agreement requirement for provincial bod- ies to have regard to native fish- eries in reaching conclusion on merits of mine does not relieve federal Minister of responsibil- ity to comply with federal rules and responsibilities in relation to fish habitat. Grand Council of the Crees v. Canada (Procureur Gen- eral) (May 13, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abel- la, Charron, Rothstein and Cromwell JJ., File No. 32693) Decision at 172 A.C.W.S. (3d) 2 was affirmed. 188 A.C.W.S. (3d) 452 (91 pp.). Intellectual Property FEDERAL COURT Industrial And TRADEMARKS Applicant failed to demonstrate its mark transcended the jeans market Board rejected applicant's oppo- sition to WRANGLER trade- mark filed by respondent brew- ery. Applicant's wares included jeans and other apparel with WRANGLER mark. Applicant argued there would be confu- sion and respondent's trade- mark was non-distinct. Board found all grounds proffered by applicant were related to s. 6 of Trade-marks Act (Can.), so conducted single analysis. Board found word Wrangler was associated with cowboys www.lawtimesnews.com and would not be closely asso- ciated with beer. Board noted applicant did not have monop- oly on Wrangler mark, which was also used by tire, jeep and smokeless tobacco companies. Board found the normal con- sumer would not be confused or associate respondent's beer with applicant's company. Ap- plicant submitted new evi- dence of consumer interest in other Wrangler products and fact it had licensed another company to sell WRANGLER whiskey in southern United States, though sales had not yet occurred. Applicant also pre- sented evidence of survey that it argued demonstrated 29% of consumers would associ- ated WRANGLER beer with WRANGLER apparel. Ap- plication for review dismissed. New evidence considered but it would not have affected out- come if available before board. Applicant's survey showed that, while 29% of Canadians thought of applicant's jeans when they heard the word Wrangler, very few would made a connection between appli- cant's business and respondent's beer. WRANGLER whiskey was not planned for sale in Canada and survey respondents were not asked about it. Board properly analyzed factors and found applicant raised insuf- ficient grounds for opposition. Board did not place improper burden on applicant. Applicant failed to demonstrate its mark transcended the jeans market. Evidence favoured respondent. Board's decision was correct in finding causal consumer would not infer respondent's WRAN- GLER beer was associated with applicant's apparel. Wrangler Apparel Corp. v. Big Rock Brewery Partner- ship (Apr. 30, 2010, F.C., O'Keefe J., File No. T-348-09) Decision at 72 C.P.R. (4th) 16 was affirmed. 188 A.C.W.S. (3d) 518 (26 pp.). Natural Resources FISHERIES Word "may" in s. 38(4) and (5) of Fisheries Act (Can.) did not give absolute discretion Applicant sought order requir- ing Department of Fisheries and Oceans ("DFO") to enforce 2008 direction issued against Three Lakes to stop flow of wa- ter from Houghton Lake to Le- nore Lake. Highly saline waters of Houghton Lake threatened fish and fish habitat in Lenore Lake. Application was dis- missed. Direction could not be meant to apply to occurrence taking place in 2009. Court could not conclude DFO had duty to enforce 2008 direction which was properly complied with by Three Lakes at relevant time. Word "may" in s. 38(4) and (5) of Fisheries Act (Can.), was used in literal sense of giv- ing inspector discretion to de- cide whether to exercise powers described therein. It was not absolute discretion. St. Brieux (Town) v. Cana- da (Minister of Fisheries and Oceans) (Apr. 19, 2010, F.C., Gauthier J., File No. T-806- 09) 188 A.C.W.S. (3d) 551 (26 pp.). Privacy Legislation EXEMPTIONS Correctional Services of Canada ordered to disclose personal information about prisoner who committed suicide Application for review of re- spondent Correctional Services of Canada's refusal to disclose personal information about prisoner, aged 19, who com- mitted suicide. Applicant was non-profit organization com- mitted to raising awareness about issues in women's im- prisonment. Prisoner was ini- tially placed in youth custody when 15 years old, but her sen- tence was extended numerous times for offences committed while imprisoned. When pris- oner turned 18 years of age, she was transferred to federal prison and moved around re- peatedly. Prisoner complained to applicant that she had been assaulted, deprived of adequate care, living conditions and psychiatric treatment and re- peatedly segregated. Prisoner executed written consent for applicant to obtain personal re- cords from respondent on her behalf. Applicant made request for disclosure from respondent under Privacy Act (Can.). Ap- plicant requested information about transfers, security clas- sifications, segregations of pris- oner, incident and psychiatric reports on prisoner and inter- nal memorandums about her. Respondent extended 30-day deadline to respond and still had not made disclosure by expiry of extended deadline, August 17, 2007. Prisoner committed suicide in her cell October 19, 2007. Respondent then denied applicant's request on basis R.C.M.P. investigation about