Law Times

Page 14 OctOber 26, 2015 • Law times www.lawtimesnews.com SUPREME COURT OF CANADA Conflict of Laws FOREIGN JUDGMENTS Ontario courts had jurisdiction to determine if foreign judg- ment should be recognized As result of exploration and extraction activities of global oil companies, Ecuador suf- fered extensive environmental pollution. Plaintiffs, who rep- resent approximately 30,000 indigenous Ecuadorian villag- ers, have been seeking legal ac- countability and financial and environmental reparation for alleged harms caused by Texa- co's former operations. Texaco later merged with Chevron, a U.S. corporation. Ecuador- ian courts awarded environ- mental damages and punitive damages of US$9.51 billion against Chevron but Chevron refused to acknowledge or pay. Plaintiffs commenced action for recognition and enforce- ment of Ecuadorian judgment in Ontario Superior Court of Justice. Plaintiffs served Chev- ron at head office in California and Chevron Canada, at extra- provincially registered office in British Columbia and place of business in Ontario. Plaintiffs sought Canadian equivalent of award resulting from Ecuador- ian judgment. Chevron and Chevron Canada applied for orders setting aside service ex juris, claiming that court did not have jurisdiction. Motion judge ruled in plaintiffs' favour with respect to jurisdiction and Court of Appeal upheld finding that Ontario courts had juris- diction to determine whether foreign judgment should be rec- ognized and enforced in Ontar- io. Chevron's appeal dismissed. Chevron Corp. v. Yaiguaje (Sep. 4, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., File No. 35682) Decision at 235 A.C.W.S. (3d) 373 was affirmed. 256 A.C.W.S. (3d) 583. FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP No error in conclusion that duty to consult extended to duty to meet, hear, discuss, take First Nations' concerns into meaning ful consideration Respondents brought applica- tion for judicial review to set aside decision by Canada to transfer Kapyong Barracks to non-agent Crown corporation which disposes of surplus prop- erty for federal government. Barracks located on lands re- spondents claimed to have right to purchase in priority to other potential purchasers. Respon- dents expressed interest in Bar- racks, but Canada proceeded with "strategic disposal pro- cess". Respondents alleged Can- ada thereby breached its duty to consult. Federal Court agreed and granted order restraining sale until Canada demonstrated it had fulfilled that duty. Cana- da appealed. Federal Court held that Canada did not owe duty to consult to Sagkeeng and Sandy Bay Ojibway First Nations; they cross-appealed. Appeal allowed with respect to remedy only; cross-appeals dismissed. Can- ada did not owe duties to con- sult Sagkeeng and Sandy Bay Ojibway First Nations; no evi- dence to support that either had land claim or unfulfilled per capita reserve land entitlement. Canada conceded it had duty to consult other respondents. No error in conclusion that duty to consult entailed not just mini- mal aspects of obligation but extended to duty to meet, to hear and discuss, to take First Nations' concerns into mean- ingful consideration and to ad- vise as to course of action taken and why. Federal Court prop- erly recognized that scope and nature of duty affected by entire factual matrix, guided by treaty land entitlement agreements and jurisprudence as well as concepts of honour, reconcilia- tion and fair dealing. Honour of Crown in its dealings with Ab- original peoples of paramount importance and history of deal- ings between parties relevant. In lieu of full satisfaction of un- fulfilled right to receive lands under Treaty No. 1, respondents had rights under treaty land entitlement agreements con- cerning lands that may come available. Canada committed to that purpose by signing agree- ments and required to engage with respondents in close and meaningful communication. It was required to give respon- dents relevant information in timely way, respond to relevant questions, consider carefully concerns, representations and proposals and advise as to ul- timate course of action and why. Ultimate decision must, at minimum, be acceptable and defensible. Canada could not transfer Barracks until duty to consult fulfilled. Canada did not fulfil its duty, failing to no- tify respondents when it closed Barracks, failing to respond to expressions of interest, failing to consult despite knowing of respondents' interest, failing to provide information and mak- ing decision to sell without responding to respondents in meaningful way. Canada (Attorney General) v. Long Plain First Nation (Aug. 14, 2015, F.C.A., J.D. Denis Pel- letier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-34-13) Decision at 225 A.C.W.S. (3d) 1 was reversed in part. 256 A.C.W.S. (3d) 502. Customs and Excise DUMPING President did not err in fail- ing to find targeted dumping Applicants manufactured power transformers in Canada. Applicants alleged that power transformers originating in or exported from Korea were be- ing dumped into Canada and had caused and were threat- ening to cause material injury to production of like goods in Canada. Following investiga- tion, president of Canada Bor- der Services Agency made af- firmative final determination of dumping under s. 41(1)(a) of Special Import Measures Act. Respondents applied for judi- cial review, disputing amount of profit president used in de- termining export price of power transformers for purposes of s. 25 of act. Respondents contest- ed inclusion of profit data from applicants in calculation. In Hyundai Heavy Industries Co. v. ABB Inc. (2013), 235 A.C.W.S. (3d) 956 (F.C.A.), final determi- nation was set aside and matter was referred back to president for re-determination. President re-opened investigation and made new final determination of dumping. Both applicants and respondents applied for judicial review. Applications dismissed. In first final deter- mination, president gave no ex- planation for using profit data of two Canadian manufactur- ers, applicants. Court directed president to take care in deter- mining whether or not Canadi- an manufacturers were at sub- stantially same level as subject importer-distributor and if so, to provide further explanation to support conclusion. Court did not direct specific result. Care was taken in determin- ing whether it was appropriate for president to use profit data of Canadian manufacturers in accordance with court's direc- tions in Hyundai. President did not fail to provide further explanation that court required as to why it was appropriate in circumstances to include data. President complied with court's directions and trade level de- termination was reasonable. Respondents failed to establish that there was reasonable ap- prehension of bias on part of president. President did not err in calculating deductive export price by using respondents' profit data. Language of act and Special Import Measures Regulations, supported propri- ety of president's methodology and decision to use profit data of respondents was reasonable. President did not err in fail- ing to find targeted dumping. Variation in individual transac- tion prices were found but they were not viewed as significant and president was not satisfied that they constituted evidence of targeted dumping. Section 30.2(2) of act was not engaged. ABB Inc. v. Hyundai Heavy Industries Co. (Jul. 2, 2015, F.C.A., Johanne Gauthier J.A., Ryer J.A., and D.G. Near J.A., File No. A-189-14, A-195-14) 256 A.C.W.S. (3d) 595. FEDERAL COURT Charter Of Rights FREEDOM OF EXPRESSION Denial of inmate's grievance regarding cancellation of televi- sion channels violated applicant's right of freedom of expression Application by 46-year old pris- on inmate for judicial review of decision of acting senior deputy commissioner of Correctional Service Canada that denied ap- plicant's grievance over cancel- ling of two television channels included in package subscribed for by group of inmates. These channels aired sexually explicit conduct. They were cancelled because female correctional officers expressed degraded sense of personal dignity and they alleged that their safety was being undermined from their exposure to sexually ex- plicit material on regular basis in workplace. Claim for denial of procedural fairness was only raised for first time on judicial review application. Applica- tion allowed. File was sent back to different commissioner for new determination. Claim for denial of procedural fairness was denied because applicant waived it. He was aware of this claim and he failed to raise it earlier in proceedings. Deci- sion, however, was not reason- able because of lack of evidence on key issues. There was also no evidence of any connection be- tween inmates watching sexu- ally explicit content on televi- sion and sexual harassment of correctional officers. Applicant provided evidence that female officers were not at risk from inmates who watched porno- graphic movies. Decision under review violated applicant's right of freedom of expression. Naraine v. Canada (Attorney General) (Jul. 30, 2015, F.C., Jocelyne Gagné J., File No. T-1108-14) 123 W.C.B. (2d) 476. Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Commission's decision did not respond to applicant's submissions Applicant worked for respon- dent bank as assistant product manager. In July 2009 she com- menced period of disability leave after she was diagnosed with anxiety and depression. No date was set for her return. In July 2010, bank permanently staffed applicant's position with another employee. In August or September 2010 applicant was found to be medically fit to return to work without re- striction, and informed bank. She returned to work on part- time basis, but in different role at different location. In June, 2011, bank notified applicant that her new position would be eliminated without cause due to corporate restructuring. Applicant's employment with bank ended in August 2011. She filed complaint with Cana- dian Human Rights Commis- sion alleging discrimination on grounds of disability. Commis- sion adopted investigator's re- port that there was insufficient evidence that bank 's decision to end applicant' employment was related to her disability and dismissed complaint. Applicant applied for judicial review on basis that Commission failed to address her complaint that bank failed to accommodate her disability and that investi- gator had failed to obtain evi- dence from two key witnesses. Application allowed in part. There was nothing to indicate that applicant's concerns re- garding failure of investigator's report to address bank 's duty to accommodate were consid- ered by commission. Commis- sion's decision did not respond to applicant's submissions and it appeared that they were sim- ply ignored. That constituted breach of procedural fairness and matter must be remitted to commission for reconsidera- tion. Investigator made reason- able efforts to establish why bank decided to permanently staff applicant's position while she was on disability leave, and manner in which bank assisted applicant in finding another position within organization. Evidence of alleged key wit- 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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