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Law Times • may 9, 2011 CaseLawLaw FEDERAL COURT Communications Law GENERAL Governor in Council stepped outside provisions of Telecommunications Act (Can.) Applicant and respondents were in same commercial situ- ation. They all bid on spec- trum auction and all were successful and all got licenses. CRTC determined respondent did not meet requirements in s. 16 of Telecommunications Act (Can.), and was not eli- gible to operate as common telecommunications carrier. CRTC determined respondent could not operate in Canada as it was not Canadian owned and controlled. Governor in Council determined respon- dent met requirements of s. 16 of Act and was eligible to operate as telecommunications common carrier in Canada. Applicant sought judicial review. Application was al- lowed. Decision was quashed. Applicant had standing to bring application. Applicant had sufficient interest in mat- ters at issue so as to be person entitled to seek judicial re- view. Access to court system was appropriate. Governor in Council misdirected itself in law particularly as expressed in reasons. Governor in Council stepped outside provisions by inserting previously unknown policy objective into s. 7 of Act namely that of ensuring access to foreign capital, technology and experience. Governor in Council erred by limiting deci- sion to respondent only. Public Mobile Inc. v. Canada (Attorney General) (Feb. 4, 2011, F.C., Hughes J., File No. T-26-10) 198 A.C.W.S. (3d) 629 (59 pp.). Crown ARMED FORCES Determination that contract law did not apply to grievance was reasonable and correct in law Applicant joined armed forc- es. Applicant claimed mili- tary career counsellor that on completion of basic training program applicant would re- ceive retroactive promotion and would be paid specified rate. Applicant alleged it was confirmed by recruiting centre on enrolment day. Applicant was commissioned as sec- ond lieutenant. Applicant did not possess university degree. Applicant brought grievance requesting change in pay level to what was indicated in enrol- ment message and retroactive commission. Chief of Defense Staff (CDS) denied applicant redress of grievance. Applicant sought order quashing deci- sion of CDS and order com- pelling Canadian Forces to grant applicant pay rates and retroactive commissioning as detailed in enrolment message. Application for judicial review was dismissed. CDS acted within statutory and regula- tory jurisdiction when consid- ering and denying redress of grievance. Applicant's right to be heard was not breached. CDS did not have closed mind in deciding grievance and in deciding not to treat ap- plicant different from peers. Determination that contract law did not apply to grievance was reasonable and correct in law. Decision was reasonable. Codrin v. Canada (Attorney General) (Feb. 2, 2011, F.C., O'Keefe J., File No. T-1633- 09) 198 A.C.W.S. (3d) 659 (28 pp.). Employment WAGES That contract had yet to expire not legal basis for avoiding federal legislative authority Applicant was commission- aire employed by respondent (CNS) to provide security services to airport pursuant to contract between CNS and HIAA. Contract was entered into pursuant to employment standards under provincial leg- islation. Applicant filed com- plaint claiming applicant was not being paid for overtime or holiday pay in accordance with standards in Canada Labour Code. Inspector concluded CNS owed applicant overtime and holiday pay of $1,801 and issued payment order. CNS ap- pealed. Referee allowed appeal of payment order concluding employment contract between CNS and HIAA was to be gov- erned by standards applicable under Labour Standards Code (N.S.), until existing contract expired. Application for judi- cial review was allowed. Fact use of provincial law in rela- tion to CNS employees was not previously challenged did not justify in law suspension of federal law until expiration of contract. Referee exceeded jurisdiction. There was no legal basis for avoiding federal leg- islative authority on basis that contract had yet to expire. Crouse v. Commissionaires Nova Scotia (Feb. 3, 2011, F.C., Boivin J., File No. T-2181-09) PAGE 13 COURT DECISIONS 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: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. 198 A.C.W.S. (3d) 678 (15 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Open to commission to reject applicant's claim that agreement unfair Application for judicial review of commission's decision dis- missing applicant's request to reactivate her human rights complaint and refer it to the tribunal. Applicant was em- ployed by Statistics Canada and alleged she was discrimi- nated against on basis of race, colour and disability. Applicant claimed she was harassed and faced retaliation after filing Workers' Compensation claim. Applicant and employer entered into memorandum of agree- ment with respect to all of ap- plicant's grievances. Employer paid applicant $128,971, pro- vided neutral letter of reference and removed all disciplinary notes from her personnel file. Applicant agreed to discharge employer from all grievance and proceedings in present and future. Applicant was repre- sented by counsel throughout process. Commission refused to reactivate complaint on basis of agreement. Application dis- missed. Investigator reviewed history of applicant's com- plaints and the relevant juris- prudence. Agreement provided compensation for applicant in return for her agreement to re- frain from pursuing complaints. It was open to commission to reject applicant's claim agree- ment was unfair. Applicant's purported witnesses would not have been expected to be useful sources of information of applicant's claim of duress, which she provided no inde- pendent evidence of. Applicant was attempting to disown role of counsel, who assisted her throughout. Commission's de- cision was reasonable and there was no breach of procedural fairness. Exeter v. Canada (Attorney General) (Jan. 25, 2011, F.C., Heneghan J., File No. T-1803- 09) 198 A.C.W.S. (3d) 793 (14 pp.). Intellectual Property Industrial And Application PATENTS Two Notices of Allegation for same drug did not necessarily result in abuse of process for stay of two notice of 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. drug manufacturers. Two dif- ferent drug manufacturers served NOAs for same drug and later amalgamated with third drug company. Two for- mulations and amounts used were different. Prior to the amalgamation, applicant com- menced separate proceedings against each, seeking an order preventing Minister from is- suing notice of compliance. Both companies now carried on under same name and their litigation strategies were direct- ed by same entity. Applicant argued it was an abuse of pro- cess to allow both NOAs to proceed, so second one should be stayed. Applicant argued is- sues in both proceedings were identical. Application dis- missed. No disposition had yet been made on NOA applicant wanted stayed. Two NOAs for same drug did not necessarily result in abuse of process. On unique facts of the case, NOAs were separate and distinct and relied on different formula- tions. Section 186 of Canada Business Corporations Act provided existing proceedings were unaffected by amalgama- tion. Allowing both NOAs to continue was not an abuse of process in these circumstances. Pfizer Canada Inc. v. Ratiopharm Inc. (Jan. 20, 2011, F.C., Case Management Judge Aalto, File No. T-1422-09) 198 A.C.W.S. (3d) 798 (16 pp.). Landlord And Tenant DESTRUCTION OF PREMISES Real estate management division obligated to refer proposal to demolish residence to commission or executive committee of one allegation ("NOAs") filed by general www.lawtimesnews.com Applicants were tenants of resi- dence which applicants rented from commission. Decision was made on behalf of commission by Capital Planning Branch to have residence demolished. Capital Planning Branch re- viewed demolition proposal submitted by real estate man- agement division. Executive director approved proponent's proposal. Applicants argued executive director did not have legal authority to approve proponent's proposal and or- der residence's demolition. Application for judicial review was allowed. Real estate man- agement division was obligated to refer proposal to demolish residence to commission or executive committee. Decision of Capital Planning Branch approving demolition of resi- dence was quashed. Section 2 of resolution and ss. 29, 30 and 31 of by-law 2 were ultra vires powers of commission. Bonin v. Canada (Attorney General) (Dec. 20, 2010, F.C., Martineau J., File No. T-427- 10) 198 A.C.W.S. (3d) 829 (23 pp.). Natural Resources FISHERIES Minister's decision in accord with Pacific Salmon Treaty, Financial Administration Act (Can.) and Fisheries Act (Can.) Minister received US $30 mil- lion pursuant to amendments to Pacific Salmon Treaty with United States. Canada agreed to reduce catch of chinook salmon by 30%. United States undertook to pay US $30 million to support Canadian mitigation program. Minister intended to reduce number of fishermen by using bulk of American funding to buy-back chinook salmon fishing licens- es not only from applicants but also from two other demarcated fishing areas where allotments were not reduced. Applicants sought declaration that fund was impressed with trust or equitable lien in applicants' favour and spending program declared by Minister was in vi- olation of Treaty and Fisheries Act (Can.). Applicants argued money should go to applicants. Application for judicial review was dismissed. Decision was justiciable except as regards to conferring of benefits un- der Treaty. Treaty was beyond reach of municipal courts un- less implemented by legisla- tion. Applicants had no special interest in mitigation fund. Minister's decision was within discretion both at law and un- der terms of Treaty. There was no unjust enrichment. Decision was reasonable. Minister's deci- sion was in accord with Treaty, Financial Administration Act (Can.), and Fisheries Act. Kimoto v. Canada (Attorney General) (Jan. 26, 2011, F.C., Harrington J., File No. T-1582- 10) 198 A.C.W.S. (3d) 841 (33 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency ADMINISTRATION OF ESTATES Appeal judge's determination that loan did form part of bankrupt estate upheld Credifinance made assign- ment in bankruptcy. DSLC filed proof of claim in amount