Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Agency REAL ESTATE AGENTS AND BROKERS Provisions of Real Estate Brokerage Act (Que.) requiring sale before broker or agent entitled to compensation are mandatory Respondent real estate broker charged vendors non-refundable "membership fee" when they signed exclusive brokerage con- tract. Fee paid in addition to any commission owing if property sold. Vendors whose homes did not sell during contract period complained to Association des courtiers et agents immobiliers du Quebec. Discipline commit- tee agreed that non-refundable fee payable without sale contra- vened requirements of Real Estate Brokerage Act (Que.) ("REBA"). Court of Quebec agreed, finding that payment terms of exclusive brokerage contract mandatory and respondent not entitled to receive payment if no sale. Court of Appeal held that although REBA was law of public order for consumer protection, provi- sions dealing with compensation at time of sale not mandatory. As a result, parties free to make own contractual arrangements. Appeal to Supreme Court of Canada al- lowed. Nothing unreasonable in discipline committee's conclusion that provisions of REBA requir- ing sale before broker or agent entitled to compensation are mandatory. Mandatory Exclusive Brokerage Contract required by regulation must contain certain provisions. Provision relating to remuneration unequivocally ties compensation to sale. Par- ticulars relating to compensa- tion could not be waived. Disci- pline committee entitled to find that respondent's non-refundable membership fees not permitted by statutory scheme. Assoc. des Courtiers et Agents Immobiliers du Quebec v. Pro- prio Direct Inc. (May 30, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Fish, Charron, Abella JJ., dissenting - Deschamps and Rothstein JJ., File No. 31664) Appeal from 151 A.C.W.S. (3d) 9; [2006] R.J.Q. 1762 allowed. Order No. 008/154/108 (53 pp.). Constitutional Law CHARTER OF RIGHTS Comity could not be used to justify Canadian participation in activities of foreign state or agents contrary to Canada's international obligations Respondent Canadian faced murder and terrorism-related charges. Canadian officials, in- cluding Canadian Security and Intelligence Service, questioned him at Guantanamo Bay and shared his answers with U.S. authorities. Formal charges were laid. Respondent invoked Stinch- combe and sought disclosure in Canada of all relevant documents in possession of Canadian Crown pursuant to s. 7 of Canadian Charter of Rights and Freedoms. Federal Court denied request but Federal Court of Appeal ordered production of unredacted cop- ies. Minister of Justice's appeal dismissed. Comity could not be used to justify Canadian partici- pation in activities of foreign state or agents contrary to Canada's international obligations. U.S. Supreme Court found that pro- cess in place at time interviews conducted violated U.S. domes- tic law and international human rights obligations to which Can- ada is party. Decision based on principles consistent with Char- ter and Canada's international law obligations. Participation in process which violated interna- tional instruments contrary to Canada's binding international obligations. Principles of interna- tional law and comity that might otherwise preclude application of Charter to Canadian officials acting abroad did not apply. Re- spondent's liberty at stake and s. 7 of Charter required that Cana- dian officials act in conformity with principles of fundamental justice. Canadian officials' re- fusal of request for disclosure put them in breach of s. 7 of Charter. Fairness required disclosure of all records in any form of inter- views whether disclosed to U.S. authorities or not. Khadr v. Canada (Minister of Justice) (May 23, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Roth- stein JJ., File No. 32147) Ap- peal from 158 A.C.W.S. (3d) 922; 280 D.L.R. (4th) 469; 220 C.C.C. (3d) 20; 362 N.R. 378; 47 C.R. (6th) 399; [2008] 1 F.C.R. 270 dismissed. Order No. 008/148/001 (29 pp.). Sentence GENERAL Maximum sentence not reserved for worst crimes committed in worst circumstances Accused convicted of sexually assaulting young daughter and of making, distributing and pos- sessing child pornography, with many images involving daughter. Accused had record of sexual as- JULY 28/AUGUST 4, 2008 / LAW TIMES COURT DECISIONS 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: ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM 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. sault of minor. Trial judge im- posed 15-year global sentence, including maximum sentence of 10 years' imprisonment for sexual assault charge. Quebec Court of Appeal reduced global sentence to nine years. Crown appealed. Appeal allowed. Per LeBel J. (ma- jority): Maximum sentence not reserved for worst crimes com- mitted in worst circumstances. All relevant factors provided for in Criminal Code must be con- sidered on case-by-case basis, and maximum sentence must be imposed if warranted by circum- stances. Evidence here convinced judge that accused's acts suffi- ciently serious, and accused suf- ficiently blameworthy, to warrant maximum sentence. Sentence imposed proportionate to gravity of acts, and mitigating and aggra- vating circumstances and objec- tives of Code accounted for. Fish J. dissenting. R. v. M. (L.) (May 29, 2008, S.C.C., McLachlin C.J.C., Basta- rache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Roth- stein JJ., File No. 31577) Appeal from 71 W.C.B. (2d) 129 al- lowed. Order No. 008/154/056 (44 pp.). FEDERAL COURT OF APPEAL Employment Insurance ENTITLEMENT Employee had obligation to apply for benefits promptly Application by federal govern- ment for judicial review of deci- sion of umpire finding employee had good cause for delay in mak- ing application for employment insurance benefits. Employee apparently took early retirement in July 2004. Employer told employee he could not apply for employment insurance ben- efits until he received record of employment in February 2005. Employee contacted employer in late 2005 and he received re- cord of employment in January 2006. Board of referees rejected application for benefits as out of time but employee successfully appealed to umpire. Application granted. Matter was referred back for re-determination on basis that appeal should have been dis- missed. Employee had obligation to make application for benefits promptly. Umpire had not set out legal test for good cause for delay. Employee had not acted reasonably in relying on employ- er's advice for as long as he did. Canada (Attorney General) v. Brace (Apr. 1, 2008, F.C.A., www.lawtimesnews.com Letourneau, Evans and Ryer JJ.A., File No. A-481-07) Order No. 008/105/125 (8 pp.). Social Welfare CANADA PENSION PLAN Challenge to constitutionality of Canada Pension Plan provisions was dismissed Applicant was immigrant to Canada. Applicant's spouse was contributor to Canada Pension Plan. Minister denied applicant survivor benefits because de- ceased spouse made insufficient contributions to Canada Pen- sion Plan. Board upheld deci- sion. Minimum contributory requirements for survivor ben- efits under Canada Pension Plan were challenged under s. 15(1) of Canadian Charter of Rights and Freedoms. Sections 44(1) (c), (d), (f ), (3)(b) and 49(b)(ii) of Canada Pension Plan were not unconstitutional. No error in board concluding differential treatment of contributors to Plan did not amount to discrimina- tion within meaning of s. 15 of Charter. Application for judicial review was dismissed. Board cor- rectly applied right principles to facts. Board committed no error that warranted or justified inter- vention. Lezau v. Canada (Minister of So- cial Development) (Mar. 13, 2008, F.C.A., Letourneau, Nadon and Sharlow JJ.A., File No. A-35- 07) Order No. 008/098/017 (6 pp.). FEDERAL COURT Air Law LICENCES Tribunal could review re-instatement conditions even though notice rescinded Applicant operated as commercial air carrier. Minister conducted audit of applicant's operations and found deficiencies. Minister served applicant notice of sus- pension listing conditions for reinstatement. Applicant com- plied with conditions. Minister rescinded notice before it was to come into effect. Applicant continued to object to condi- tions. Tribunal determined it did not have jurisdiction to review grounds for suspension because notice was rescinded prior to coming into force. Application for judicial review was allowed. Application was not moot. There was live controversy. Tribunal erred by failing to have regard to entire context. Section 7.1(3) of Aeronautics Act (Can.), did not state decision had to come into force, only that decision had to affect operator. Operator that was required to comply with conditions for reinstatement continued to be affected by deci- sion to suspend. Tribunal could review re-instatement conditions to assess whether notice should be confirmed even though notice was rescinded. Skyward Aviation Ltd. v. Can- ada (Minister of Transport) (Mar. 7, 2008, F.C., Snider J., File No. T-301-02) Order No. 008/094/083 (21 pp.). Contempt Of Court PUNISHMENT Warrant of committal issued after defendant found in contempt of injunction for third time Plaintiff moved for warrant of committal against defendant. Defendant found in contempt of permanent injunction for third time. Court sentenced defendant to six-month term of imprison- ment, suspended on terms that defendant perform 400 hours of community service within de- fined period of time. Defendant performed less than 65 hours of community service during pe- riod. Defendant sought exten- sion of time for completion of community service on grounds that supervisor was not always present, that wife was present in Canada for period of time dur- ing period for community service and that defendant had become ill. Motion granted. Extension of time should be granted if, due to circumstances beyond control of defendant, defendant unable to complete community service and comply with contempt or- der. Here, no extraordinary cir- cumstances and no reasonable excuse for non-compliance. As contempt order was compulsory in its breach, warrant for com- mittal allowed. Canadian Copyright Licens- ing Agency v. U-Compute (Mar. 27, 2008, F.C., Dawson J., File No. T-1758-03) Order No. 008/119/078 (31 pp.). ONTARIO CIVIL CASES Aboriginal Peoples STATUS Registrar had jurisdiction to determine validity of enfranchisement Appeal from decision of Regis- trar of Department of Indian Af- fairs and Northern Development denying appellants' registration pursuant to s. 6(1)(a) of Indian Act (Can.). Appellant mother lost her status as Indian in 1952

• Cover