Law Times

March14, 2016

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Page 14 March 14, 2016 • Law TiMes www.lawtimesnews.com 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. Federal Court of Appeal Civil Procedure PRELIMINARY QUESTION OF LAW Open to court to decline to consider correctness of judge's answer to questions not properly falling within R. 220(1)(a) Corporations commenced ac- tion against the Society of Composers, Authors and Music Publishers of Canada seeking to recover amounts paid in re- lation to ringtones downloaded onto mobile devices. SOCAN, acting on behalf of Canadian music creators, counterclaimed for ringtone royalties. Copy- right Board certified tariff 24 authorizing SOCAN to collect royalties on ringtone downloads on ground downloads consti- tuted communication to public within meaning of Copyright Act (Can.). FCA dismissed ap- plication for judicial review and leave to appeal to SCC denied. Pursuant to consent agreement, proposed replacement tariff 24 was certified for 2006-13, pursu- ant to which Corporations paid over $12 million. In separate proceedings, Copyright Board certified tariff 22.A, which set royalties for downloading musi- cal work over Internet or mobile network. FCA dismissed ap- plication for judicial review but SCC heard two appeals, majority determining that musical works not communicated by telecom- munication when downloaded. Copyright Board declined Cor- porations' application to vary tariff 24 certification decisions, finding that power to vary did not include power to rescind. Corporations brought action against SOCAN, claiming SO- CAN was unjustly enriched. On preliminary determination of questions of law, judge held that Corporations' claim not fi- nally decided and they were not prevented by consent agreement from claiming relief. Judge con- cluded that internet transmis- sion of ringtone file not consti- tuting communication to public (not under appeal) and Copy- right Board had jurisdiction to certify tariff 24. He also conclud- ed, however, that SOCAN not unjustly enriched and Corpora- tions not entitled to order trac- ing distribution of tariff 24 roy- alties. Corporations' appeal and SOCAN's cross-appeal allowed in part. Determination of ques- tions arose out of R. 220(1)(a) of Federal Courts Rules (Can.) which authorizes determination of questions of law. Although made on consent, open to court to decline to consider correct- ness of judge's answer to ques- tions not properly falling within R. 220(1)(a). Whether consent agreement provided basis upon which Corporations' claim could be precluded was not pure ques- tion of law and should not have been decided. Judge should have declined to determine whether SOCAN unjustly enriched as this was not pure question of law and was central issue to be tried. Whether Corporations were en- titled to order tracing distribu- tion of tariff 24 royalties was also not pure question of law. Rogers Communications Part- nership v. Society of Composers, Authors and Music Publishers of Canada (Jan. 27, 2016, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and D.G. Near J.A., A-141-15) Decision at 250 A.C.W.S. (3d) 417 was reversed. 262 A.C.W.S. (3d) 71. Federal Court Aboriginal Peoples STATUS Record too sparse to conclude that First Nation fell within definition of 'Band' in Indian Act (Can.) Delegate of Minister of Ab- original Affairs and Northern Development Canada refused applicant First Nation's request for $5,000 to be paid to it from trust money held by Govern- ment of Canada. Funds were sought to assist First Nation in paying for research to be used in negotiations with Department of Fisheries and Oceans. Refusal was based on fact that First Na- tion was not recognized Band pursuant to Indian Act (Can.). First Nation applied for judicial review of minister's delegate's decision. Application dismissed. In order to make declaration that applicant sought, namely that Minister of Indian Affairs and Northern Development held funds for its benefit, court would first have to find that First Na- tion was entitled to claim money on basis that land in New Bruns- wick that was set aside as reserve land in 1881 was set aside for Passamaquoddy people. Court would then have to find that members of First Nation were successors to Passamaquoddy people for whom reserve was created. Effect of such findings would be that First Nation would then come within definition of Band in s. 2 of Act, and would be entitled to social programs and other benefits. However, record before court was far too sparse to make findings First Nation sought. Delegate's decision was not incorrect or unreasonable, based on limited record before him when decision was made. Delegate did not apply wrong standard of proof in rejecting First Nation's request for fund. Schoodic Band v. Canada (Attor- ney General) (Dec. 21, 2015, F.C., Anne L. Mactavish J., T-1183-14) 262 A.C.W.S. (3d) 4. Immigration VISITORS Question was certified with respect to application for extension of temporary residence permit Foreign nationals were French citizens in Canada on temporary resident permits which expired July 15, 2014. On June 16, 2014 foreign nationals applied for ex- tension of time however applica- tion forms and documents were returned to them because they had failed to make sufficient payment and to provide other required documents. Citizen- ship and Immigration Canada's covering letter to foreign nation- als indicated that their request could not be dealt with unless they returned copy of letter, to- gether with new complete ap- plication in proper form accom- panied by correct fee and other required documents. On August 25, 2014, foreign nationals pur- ported to comply, however their application forms were again sent back with same form cover- ing letter indicating that certain information was still missing. On April 21, 2015 foreign na- tionals resubmitted everything and had yet to receive reply. On July 4, 2015, minister's delegate signed exclusion order pursuant to s. 44(2) of Immigration and Refugee Protection Act (Can.) on grounds that foreign nation- als had violated s. 29(2) of Act by failing to leave Canada at expiry of their temporary resident per- mits. Foreign nationals applied for judicial review, contending that exclusion order was invalid because they had applied for ex- tension of their permits before they had expired, so that they maintained Canadian status un- der Regulations until their appli- cations were refused on merits. Application dismissed. Decision of minister's delegate to issue ex- clusion order was both reason- able and correct. Application within meaning of s. 183 of Im- migration and Refugee Protec- tion Regulations (Can.) must be such that decision maker is able to grant extension, or to reject it, on merits. Officer could not have made positive decision on appli- cation form submitted before temporary resident permits ex- pired because applications were incomplete. Therefore, foreign nationals were required to depart Canada under s. 183(1) of Regu- lations and s. 29 of Act. Question certified: When temporary resi- dent has applied for extension of period authorized for his or her stay, but application is returned to applicant, due to incomplete- ness, in accordance with s. 12 of Regulations, does applicant ben- efit from implied status until he or she actually submits complete application and that application is either refused or allowed?. Stanabady v. Canada (Minis- ter of Citizenship and Immigra- tion) (Dec. 11, 2015, F.C., Sean Harrington J., IMM-2838-15, IMM-2840-15) 262 A.C.W.S. (3d) 194. Police DISCIPLINE Officer not given opportu- nity to respond to serious alle- gations made against him Applicant was police officer with over 25 years of experience. In 2013, applicant undertook forensic identification training offered by Canadian Police Col- lege; applicant had already un- dertaken this training in 2008, but had failed. Participant in training alleged that applicant was constantly disrespectful and behaved inappropriately towards female participants; other par- ticipants also expressed similar comments, reporting that ap- plicant was disruptive during class. Applicant was given letter signed by superintendent, in- forming him of his immediate dismissal from CPC as result of allegations of inappropriate behaviour. Upon return to his police force, applicant informed CPC of his desire to appeal and sent letter via his solicitor re- questing all details of alleged allegations of misconduct and requested his immediate rein- statement at CPC. Applicant's appeal was dismissed by Direc- tor General of CPC. Applicant brought application for judicial review. Application granted. De- cision was illegal and procedur- ally unfair; case was returned for reconsideration in light of Di- rective A10. Directive A10 speci- fied conduct of participants and defined which behaviours were subject to disciplinary actions and sanctions that could be ap- plied according to misconduct in question; it was therefore le- gitimate that applicant expected directive to be followed. CPC's decision had significant conse- quences for applicant, particu- larly regarding his professional and personal reputation. Appli- cant was entitled to expect to be able to respond to allegation that he was accused of in informed manner. Record showed that superintendent did not exam- ine allegations presented, nor give applicant opportunity to respond to serious allegations made against him. Appeal in this case did not remedy viola- tions that occurred under origi- nal decision, and applicant did not actually receive appeal de novo. Applicant's right to be in- formed of allegations and right to reply were fundamental rights which were severely violated. Beauregard c. Canada (Procu- reur général) (Dec. 14, 2015, F.C., Sylvie E. Roussel J., T-1170-14) 262 A.C.W.S. (3d) 234. Ontario Civil Cases Appeal POWERS OF APPELLATE COURT Appeal judge had no jurisdic- tion to remit custody matter to trial judge for further hearing Father appealed trial decision awarding custody of parties' three-year-old child to mother, allowing mother's application to relocate from Ontario to Eng- land and prescribing access. First appeal judge affirmed custody, relocation and access decisions but remitted final order to trial judge "to correct any errors or inconsistencies in its wording and to adjudicate on any partic- ular matters that were not dealt with." He held that trial judge could admit additional oral or affidavit evidence. Father's fur- ther appeal allowed in part. This court can intervene only if judge below erred in law or made mate- rial error in appreciation of facts. Deferential approach intensi- fied on second appeal. No basis to interfere with appeal judge's decision upholding custody and relocation decisions. Trial judge proceeded upon proper legal framework and trial judge's fac- tual findings were permissible inferences from evidence. Ap- peal judge, however, had no ju- risdiction to remit matter back to trial judge for further hear- ing. Process to settle order is to ensure that formal order accu- rately sets out intention of court as ref lected in endorsement or reasons. It is not opportunity for parties to re-argue issues already decided. Appeal judge erred to extent he relied on R. 25(19)(c) of Family Law Rules (Ont.) as basis for remitting issues of custody and access back to trial judge. Rule 25(19)(c) only permits court to change order that "needs to be changed to deal with a matter that was before the court but that it did not decide." Rule 25(19)(c) had no application since trial judge dealt with all matters relat- ing to custody and access. Trial judge's subsequent custody and access order was of no force or effect. Original custody and ac- cess order remained in place. Chitsabesan v. Yuhendran

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