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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Appeal LEAVE TO APPEAL Whether legal issue of public importance is not matter on which affidavit evidence is helpful Applicant applied for order per- mitting publications annexed to affi davit to be added to ap- plication for leave to appeal. It argued that articles demon- strated application of public importance and not available when leave application fi led. Leave application concerned "Mary Carter-type agreement", i.e. settlement agreement in multiparty litigation between plaintiff and defendant wherein defendant ostensibly remains active party to litigation while plaintiff 's claim targets other parties. In this case, applicant's conduct held to warrant stay of proceedings for abuse of process because it failed ever to volun- teer existence of agreement to other parties or court. Applica- tion dismissed. Supreme Court of Canada takes view that ques- tion whether legal issue of pub- lic importance is not matter on which affi davit evidence is help- ful. In this case, issues straight- forward and material sought to be fi led simply illustrated straightforward nature of legal issues. Material confi rmed con- sistent rule that "Mary Carter- type agreement" must be dis- closed as soon as agreement made. Procedural point about how party goes about disclosing existence of such agreement to court not something that raised legal issue of public importance. Aecon Buildings, a Division of Aecon Construction Group Inc. v. Stephenson Engineering Ltd. (June 23, 2011, S.C.C., Binnie, Abella and Rothstein JJ., File No. 34112) 202 A.C.W.S. (3d) 435 (4 pp.). FEDERAL COURT OF APPEAL Communications Law BROADCASTING Any policies not enumerated have to operate within limits of objectives identified in Telecommunications Act Telecommunications Act (Can.), requires that company be Canadian-owned and con- trolled to be eligible to operate in Canada as telecommunica- tions common carrier. CRTC issued decision concluding Globalive controlled by non- Canadian and not eligible to operate as telecommunications common carrier. Minister of Industry reviewed decision and Governor in Council is- sued Order in Council fi nding Globalive not controlled by non-Canadian and eligible to operate in Canada. Appeal by Globalive and Attorney Gener- al of Canada allowed. Governor in Council's application of con- trol in fact test and references to telecommunications policy objectives decisions of mixed fact, policy and law to which reasonableness standard applies. Given Governor in Council's policy function and expertise and nature of Order in Coun- cil, broad range of decisions will fall within range of reasonable outcomes. Canadian owner- ship and control defi ned by three requirements but matter September 5, 2011 • Law timeS Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 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: 5/5/10 3:55:30 PM 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. in question turned on whether Globalive controlled by non- Canadian. Governor in Council applied control in fact test with- out reference to policy consid- erations. Policy considerations became relevant once Governor in Council decided Globalive not controlled by non-Cana- dian and went on to consider whether to vary CRTC's deci- sion. While Governor in Coun- cil based decision to vary at least in part on policy concern that CRTC's decision under- mined competition in wireless telecommunications market, policy decision premised on de- termination already made that Globalive "a Canadian-owned and controlled company". Th is part of Governor in Coun- cil's analysis clearly reasonable. Open to Governor in Council, in deciding to vary CRTC deci- sion, to refer to policy consid- erations. Exercise of variance power meant to be informed by telecommunications policy objectives set out in Act. Gov- ernor in Council did not err by referring to number of enumer- ated objectives as well as objec- tive not enumerated since "the promotion of access to foreign capital, technology, and experi- ence" can further enumerated policy objectives. Governor in Council clearly recognized that any policies not enumerated have to operate within limits of objectives identifi ed in Act and it never purported to attach in- dependent signifi cance to pro- motion of foreign investment. Public Mobile Inc. v. Canada (Attorney General) (June 8, 2011, F.C.A., Sexton, Daw- son and Stratas JJ.A., File No. A-78-11; A-79-11) Decision at 198 A.C.W.S. (3d) 629 was re- versed. 202 A.C.W.S. (3d) 489 (35 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW Fine of 20% of market value could not be considered unreasonable Applicant sought judicial review of decision that imposed fi ne for non-declaration of import- ed goods. Applicant claimed to have acted in good faith and promptly declared good when asked by customs offi cials. Ap- plication not allowed. Court affi rmed that fi ne imposed was not unreasonable and was ac- cording to legislation. Despite having declared goods during inspection, fi ne of 20% of mar- ket value could not be consid- ered unreasonable. Germain v. Canada (Procureur General) (May 10, 2011, F.C., Tremblay-Lamer J., File No. T-565-10) Reasons in French. 202 A.C.W.S. (3d) 429 (9 pp.). Immigration PERSON IN NEED OF PROTECTION Reason reached by board that police response was adequate was reasonably open to it Application for judicial review of decision by board refusing applicant's application for refu- gee protection. Applicant was citizen of Mexico. Applicant claimed that while in Mexico, she was harassed and received death threats from her boy- friend. Applicant reported inci- dents to police. Boyfriend went into hiding for period of time, and then abusive and threat- ening behaviour started up again. Applicant did not make any further complaints to po- CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • and judges in Canada; contact information boards, commissions and Crown corporations; legal and government contact information of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $146 • L0084-8573-26084 • One-time purchase $162 • L0084-8573 • ISSN 0084-8573 Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation Prices subject to change without notice,to applicable taxes and shipping & handling. CANADIAN LAW LIST www.lawtimesnews.com CLL - 1-4 page - 5X.indd 1 8/23/11 2:40:32 PM lice. Applicant fl ed to Canada. Board found that adequate state protection was available to ap- plicant if she were to return to Mexico. Application dismissed. Board considered all relevant criteria. Reason reached by board that police response was adequate was reasonably open to it based on evidence. Gonzalez v. Canada (Minister of Citizenship and Immigration) (May 24, 2011, F.C., Rennie J., File No. IMM-5321-10) 202 A.C.W.S. (3d) 559 (9 pp.). SELECTION AND ADMISSION Officer erred in not conducting interview after implying letter was fraudulent Application for judicial review of decision denying applica- tion for permanent residence in federal skilled worker class. Applicant was citizen of India who applied under fi nancial auditor and accountant clas- sifi cation. Offi cer found appli- cant had not established one year of continuous full-time experience and employer let- ter simply copied duties from classifi cation and matched du- ties listed in employment off er. Applicant argued offi cer erred in not allowing him to respond to concerns about documents, in assessing his credibility with- out an oral hearing, in failing to provide adequate reasons and in rendering an unreasonable decision. Applicant argued he should have received 79 points. Application allowed. Offi cer did not just state evidence was insuffi cient, she expressed con- cern employer letter had been copied. Th is implied letter was fraudulent and was a credibil- ity fi nding, so offi cer erred in not conducting an interview. Style of cause amended to add

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