Law Times

PAGE 14 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. COURT OF CANADA Administrative Law SUPREME restraint in intervening at early stage Complainant, francophone Acadian parent, filed com- plaints with Nova Scotia Human Rights Commission alleging that funding arrangements for French-first-language schools in Halifax discriminated on basis of Acadian ethnic origin. Upon amalgamation of municipali- ties and affected school boards, Halifax imposed tax in order to satisfy statutory requirement that it maintain supplementary fund- ing to schools that received such funding prior to amalgamation. Halifax schools under newly created Conseil scolaire acadi- en provincial, a province-wide public school board that admin- istered French-first-language schools, did not receive supple- mentary funding. Commission requested that board of inquiry be appointed. When other par- ents brought Canadian Charter of Rights and Freedoms chal- lenge, statutory amendment pro- vided for supplementary fund- ing for Conseil schools. Charter challenge dismissed on consent. Halifax sought judicial review of commission' JUDICIAL REVIEW Courts should exercise great complaint to board of inquiry. Judge of Nova Scotia Supreme Court set referral decision aside but Nova Scotia Court of Appeal reversed that decision. Appeal to Supreme Court of Canada dismissed. Commission' sion not determination of juris- diction but rather discretionary decision that inquiry warranted, decision that should be reviewed for reasonableness. Commission has broad discretion whether to appoint board of inquiry; it must simply be "satisfied" hav- s deci- ing regard to circumstances that inquiry warranted. In deciding to refer complaint to board of inquiry, commission' one of screening and administra- tion, not adjudication. Decision in Bell v. Ontario Human Rights Commission (1971), 18 D.L.R. (3d) 1 (S.C.C.), should no longer be followed; courts should exer- cise great restraint in intervening at early stage. Reviewing court' approach must reflect appropri- ate level of deference both to substance of tribunal' s and ongoing process. Standard of reasonableness reflects appro- priate deference and recognizes that administrative decision makers have margin of apprecia- tion within range of acceptable and rational solutions. Nature of commission' s decision move to board of inquiry and place of that decision in commis- sion' s role in deciding to of context that must be taken into account in applying reason- ableness standard. Commission' s processes important aspects s decision to refer referral decision upheld. There was reasonable basis, provided primarily by novelty and com- plexity of complaints, for com- mission to be satisfied that inqui- ry warranted in circumstances. Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (Mar. 16, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33651) Decision at 185 A.C.W.S. (3d) 441 was affirmed. 212 A.C.W.S. (3d) 606 (38 pp.). s Plaintiff, Ontario-based corpo- ration, engaged in exploration and development of gold proper- ties in Democratic Republic of the Congo, commenced action in Ontario against publisher, author, researchers and editors of Plaintiff 's reputation in Ontario vital to conducting business Conflict Of Laws JURISDICTION s function These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. book, alleging that book's content libelous and that it accused plain- tiff of committing human rights violations and fraud in order to further its financial interests in Africa. Publisher was cor- poration based in Quebec and author, researchers and editors all worked and resided in Quebec. Book distributed in Ontario bookstores, available in Ontario public libraries and available for purchase on publisher' Defendants cessful motion to stay action on basis there was no real and substantial connection between subject-matter of action and Ontario and that Ontario court not convenient forum. Court of Appeal upheld motion judge' decision. Appeal brought s website. unsuc- Court of Canada dismissed. Applying analytical for assuming jurisdiction under common law real and substan- tial connection test and proper approach to application of doc- trine of forum non conveniens set out in Charron Estate v. Bel Air Travel Group Ltd; Van Breda v. Village Resorts Ltd. (2012), 212 A.C.W.S. (3d) 712 (S.C.C.), there was real and substantial connection between claim and Ontario. Alleged tort of defama- tion occurred in Ontario and book distributed in Ontario. No requirement at this stage to show evidence of harm or that book was read. Publication may be inferred when libellous material contained in book circulated in library. Also evidence establish- ing that plaintiff ' to Supreme framework s adduced sufficiently compel- ling evidence of reputation in Ontario. Financial recovery may not be central issue as declara- tory judgment may be as valu- able. Whether lex loci delicti rule applied or location of most substantial harm to reputation considered, applicable law that of Ontario. Balance of fairness on issues of juridical advantage also favoured Ontario. Banro Corp. v. Editions Ecosociete Inc. (Apr. 18, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ., File No. 33819) Decision at 188 A.C.W.S. (3d) 1016 was affirmed. 212 A.C.W.S. (3d) 711 (38 pp.). Deschamps, Fish, COURT OF APPEAL FEDERAL COMMUNICATIONS Employer's operations so local Communications Law POSTAL This was application for judi- cial review of Canada Industrial Relations Board' to suggest it was not federal undertaking tifying union as sole bargaining agent for employer' Ontario was vital to conducting business of attracting investors and maintaining good relations with regulators. Commission of tort in Ontario recognized pre- sumptive connecting factor and motion judge correctly assumed jurisdiction. Motion judge cor- rectly exercised discretion in maintaining Ontario' s reputation in tion. Harm typically presumed in defamation cases and plaintiff s jurisdic- Employer was bicycle and pedes- trian courier company. Employer delivered time-sensitive letters and packages within Greater Toronto Area. Board held that employer was providing postal service within meaning of s. 91(5) of Constitution Act, 1867, and that its operations fell within competence of Parliament. Board found it had jurisdiction to cer- tify union as sole bargaining agent for employer' s decision cer- s employees. Application granted. Employer's s employees. business involved collection, transportation and delivery for fee of time-sensitive letters and small packages exclusively within Greater Toronto Area. Item was usually delivered on same day it was collected. Employer had no connection with Canada Post or any intra-provincial service. Employer' daily operations were so local and limited in nature to suggest that it was not federal undertak- ing. Choice of singular "postal service" in s. 91(5) of Act sup- ported employer' s habitual activities and there was only one postal service in Canada. Employer had none of essential characteristics of postal service. "Postal service" in s. 91(5) of Act referred to national delivery system, currently oper- ated by Canada Post. Board had no jurisdiction to grant union' s position that certification request and certifi- cation order was quashed. TurnAround Couriers C.U.P.W. (Feb. 2, 2012, F.C.A., Blais C.J., Evans and Sharlow JJ.A., File No. A-441-10) 212 A.C.W.S. (3d) 714 (25 pp.). Inc. Taxation Canada Revenue Agency inves- tigated Proposed amendments constituted collateral attack on warrant INCOME TAX of offences under Income Tax Act (Can.), and Excise Tax Act (Can.). In course of its investi- gation, agency applied for and obtained search warrant pursu- ant to s. 487 of Criminal Code (Can.). In his notice of applica- tion, appellant challenged his tax liability, warrant' appellant for variety agency's decision to apply for s validity and warrant under Code rather than Acts. He subsequently sought to amend his notice of applica- tion. Prothonotary dismissed motion. Appellant appealed pro- thonotary' Court. Judge dismissed appeal and determined that prothono- tary' held that proposed amendments constituted collateral attack on s decision was correct. Judge s v. June 4, 2012 • Law Times s decision to Federal Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

• Cover