Law Times

Law Times • June 8, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Section 241(b) of Criminal Code (Can.) is constitutionally invalid Plaintiffs challenged consti- tutional validity of s. 241(b) of Criminal Code (Can.). Supreme Court of Canada had upheld section 19 years earlier by find- ing any Canadian Charter of Rights and Freedoms viola- tions were saved pursuant to s. 1 .Plaintiffs suffering from fatal diseases sought ability to access physician-assisted suicide when life became unbearable. Trial judge declared s. 241(b) of no force and effect. Trial judge held that Supreme Court of Canada's conclusion could be reconsid- ered in view of new principles of fundamental justice recog- nized after the decision and new factual record. Majority of Court of Appeal found that trial judge erred in holding she was not bound by earlier deci- sion and reversed trial judge's decision. Appeal allowed and declaration of invalidity re- stored. Trial judge was entitled to revisit earlier judgment in view of new evidence and jur- isprudential changes. Absolute prohibition on assisted suicide impaired plaintiffs' liberty and security of the person. Legisla- tion was overbroad and not in accordance with the principles of fundamental justice. Legisla- tion failed to minimally impair plaintiffs' rights. Carter v. Canada (Attorney General) (Feb. 6, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35591) Decision at 244 A.C.W.S. (3d) 600 was reversed. 252 A.C.W.S. (3d) 74. FEDERAL COURT OF APPEAL Civil Procedure PARTIES Groups granted leave to intervene in appeals respecting Northern Gateway Pipeline Project Parties were disputing reason- ableness and legality of North- ern Gateway Pipeline Project's approval. Consolidated matters were applications and appeals from decisions from Gover- nor in Council, National En- ergy Board and Joint Review Panel. Amnesty International and Canadian Association of Petroleum Producers brought motions to intervene under R. 109 of Federal Courts Rules (Can.). Motions granted. Both proposed interveners had genu- ine interest in matter and were able to bring knowledge, skills and resources before court. In- ternational law was very much at large on all issues in many different ways in consolidated matter. Amnesty International was granted leave to intervene on terms, primarily because of its expertise in international law issues and potential that in- ternational law issues could be relevant, albeit in limited ways. Canadian Association of Petro- leum Producers could shed light on discussion of whose interests might be affected if project's ap- proval was overturned. Matters had complex and important dimensions that needed to be exposed to perspectives beyond those offered by particular par- ties before court. Gitxaala Nation v. R. (Mar. 16, 2015, F.C.A., David Stratas J.A., File No. A-56-14, A-59-14, A-63- 14, A-64-14; A-67-14, A-437-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14) 252 A.C.W.S. (3d) 39. FEDERAL COURT Administrative Law JUDICIAL REVIEW Applicant did not provide rea- sonable explanation for delay in bringing application Respondent granted disposal at sea permit to ARS authoriz- ing sinking of decommissioned ship to turn it into artificial reef at Marine Park. Applicant as- serted respondent was prohib- ited by law from authorizing disposal at sea of ship contain- ing allegedly banned substances (TBTs) in its hull. TBTs in ship's hull were common ingredients in anti-fouling paint used on ship's hull to prevent barnacles from growing on ship. Ap- plicant sought judicial review. Respondent asserted applica- tion was filed too late. Applica- tion dismissed. Application was not commenced within 30-day time-limit and was filed too late. Application was filed more than two months beyond time- limit. Respondent should not be prejudiced by fact that it did not raise issue of lateness until it filed written submissions on ap- plication. Contents of applica- tion were not sufficient to trans- form what was otherwise chal- lenge that was clearly focused on decision to issue permit, into challenge of broader course of conduct that included minis- ter's refusals to establish board of review and to suspend permit and 30-day time-limit applied. Court declined to exercise ju- risdiction to grant extension of time. ARS suffered substantial prejudice as result of applicant's failure to file application within time period. Applicant did not provide reasonable explana- tion for delay. Applicant did not show any intention to bring ap- plication sooner. Application was dismissed on merits. In any event respondent was not pro- hibited by law from issuing per- mit and issuance of permit was not unreasonable. Anti-fouling coating of ship's hull was rea- sonably determined to be in non-active state. Respondent conducted extensive and thor- ough analysis over several years prior to issuance of permit. Save Halkett Bay Marine Park Society v. Canada (Minister of the Environment) (Mar. 10, 2015, F.C., Paul S. Crampton C.J., File No. T-10-15) 252 A.C.W.S. (3d) 2. Citizenship APPEAL Officer erred in finding adop- tion entered into primar- ily for acquiring benefit of immigration or citizenship Application for citizenship by child adopted by Canadian citi- zen. Adoptive mother was Ca- nadian citizen who had applied to adopt five-year-old daughter of her cousin in St Vincent, who was single mother. Adoptive mother began adoption process in 2010 when child was baby. In 2010 court in St Vincent grant- ed adoption of child to adop- tive mother. In December 2013 adoptive mother submitted application for Canadian citi- zenship for child. Throughout interview both adoptive moth- er and biological mother gave same motivation/reasons for adoption i.e. comparatively su- perior medical care and school- ing in Canada as opposed to St. Vincent. Adoptive mother wished to offer benefits of Ca- nadian citizenship to child. Officer rejected application on ground adoptive mother had failed to establish that adoption was in best interests of child and had not created genuine parent child relationship as re- quired by s. 5.1(1)(b) of Citizen- ship Act (Can.). Officer further concluded that adoption was entered into primarily for pur- pose of acquiring citizenship status for child. Adoptive moth- er applied for judicial review. Application granted. Legal re- lationship between biological mother and child was severed by St. Vincent court via grant of adoption. Fact that adoptive and biological parent wished to give child better life in terms of access to medical care and schooling could not support finding that primary intention of adoption was to evade im- migration laws. Officer did not consider positive home study report, evidence that adoptive mother did not have children, was married with good income and wished to help others. Of- ficer erred in making a finding that adoption was entered into primarily for acquiring benefit of immigration or citizenship and in finding that adoption was not in best interests of child. Officer also failed to consider steps adoptive mother would take, going forward, in order to establish genuine relation- ship with child, including fact that adoptive mother intended to take nine months maternity leave when child arrived in Canada. Young v. Canada (Minister of Citizenship and Immigration) (Mar. 13, 2015, F.C., Donald J. Rennie J., File No. T-1527-14) 252 A.C.W.S. (3d) 15. ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Divisional Court did not err by allowing plaintiff to recast case on appeal Teranet manages Ontario's electronic land registry system, providing electronic copies of registered plans of survey, in- cluding drawings, maps, charts and plans prepared by land sur- veyors, to public for fee. No fees or royalties paid to land sur- veyors who prepared plans of survey. Plaintiff, land surveyor, asserted copyright in plans of survey it prepared and sought certification of class proceeding on behalf of land surveyors in Ontario whose surveys appear in digital format in Teranet's da- tabase. Class proceedings judge refused to certify class proceed- ing. Divisional Court certified action on basis of revised class definition and common issues. Teranet's appeal dismissed. Un- like most surveyors, plaintiff ordinarily does not require or obtain copies of surveys from Teranet. Located and operating almost exclusively on Manitou- lin Island, plaintiff has copies of work of most surveyors who have ever worked on the island. Common ground that plans of survey acquire copyright pro- tection. Divisional Court did not err by allowing plaintiff to recast case on appeal. Class pro- ceedings evolve and there must be some latitude for consider- ation of issues not raised at first instance provided other party afforded procedural fairness. Plaintiff 's reformation of class definition not fundamentally changing nature of case. Any prejudice dealt with by costs order. There was substantial similarity between two sets of proposed common issues. Ter- anet not at disadvantage in pre- senting arguments to Division- al Court on revised common issues; conceptual core of case remained unchanged. Teranet had prior notice of revisions and full opportunity to make submissions. No new evidence required. Divisional Court did not err by considering revised proposals. Revised common is- sues isolated fundamental ques- tions based upon legal position taken by Teranet. Resolution of issues would significantly ad- vance the litigation. Plaintiff 's unique circumstances, in par- ticular lack of reliance on Ter- anet, made him ideally suited to vigorously prosecute claim. Situation of other surveyors not so different so as to give rise to conf lict or make plaintiff un- suitable to represent their in- terests. Incumbent on proposed representative plaintiff to show two or more individuals have same claim. Existence of more than one claim apparent from nature of claim; not necessary to show there are class members, other than plaintiff, who wish to pursue claims as class ac- tion. Reasonable for Divisional Court to accept litigation plan; it was inevitable plan would be modified as case proceeds. Keatley Surveying Ltd. v. Teranet Inc. (Apr. 14, 2015, Ont. C.A., K.M. Weiler J.A., Robert J. Sharpe J.A., and R.A. Blair J.A., File No. CA C59341) Decision at 239 A.C.W.S. (3d) 862 was af- firmed. 252 A.C.W.S. (3d) 18. TIME Dismissal of counterclaim for delay upheld on appeal Defendant commenced ten separate Small Claims Court actions against plaintiff mu- nicipality. Municipality com- menced action in Superior Court against defendant, which he defended with counterclaim. Actions were consolidated and defendant's claims were all re- quired to be asserted as part of his counterclaim. Court issued status notice and defendant re- quested status hearing. Consent timetable order was issued. Mu- nicipality then brought motion to dismiss defendant's claims for delay. Defendant had not produced affidavit of docu- ments in counterclaim by time of motion to dismiss for delay. Defendant's counterclaim was 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. 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