Law Times

Page 14 December 12, 2016 • Law Times www.lawtimesnews.com Respondent importers imported goods qualifying under North American Free Trade Agree- ment (NAFTA) into Canada from United States using duty free tariff classifications with Most Favoured Nation (MFN) tariff treatment. Importers sub- sequently discovered tariff classi- fications were incorrect. Import- ers filed corrections, as required by s. 32.2 of Customs Act, and notified Canadian Border Ser- vices Agency (CBSA) that goods were being imported using duty free tariff classifications under NAFTA. CBSA objected on basis importers had not been entitled to correct tariff treatment, which was not wrong, and were prohib- ited by s. 74 of Act from claiming benefits under NAFTA more than one year after importation. Canadian International Trade Tribunal (CITT) disagreed, finding that CBSA had erred by focusing on correction to tariff treatment rather than to tariff classification and that one-year limitation period applied only to importers seeking refunds. CITT noted it had already de- cided issues in previous case, and adopted reasoning and conclu- sions in that case. CITT found CBSA's failure to apply previous case, and unjustified attempt to relitigate it, constituted abuse of process. Attorney General of Canada appealed. Appeal dis- missed. Decision reviewable on standard of reasonableness. De- cision and outcome in previous case reasonable. Section 32.2 per- mitted importers to correct tariff classifications and, accordingly, tariff treatments. Section 74 had no application to non-revenue corrections. CITT's interpreta- tion of provisions not contrary to other provisions of Customs Act, Tariff or Regulations, and con- sistent with articles of NAFTA. Given principles governing rela- tionship between tribunals such as CITT and administrators such as CBSA, as well as defer- ence owed to fact-based findings made by CITT, there were no grounds to interfere with conclu- sion regarding abuse of process. Canada (Attorney General) v. Bri-Chem Supply Ltd. (2016), 2016 CarswellNat 5260, 2016 FCA 257, Johanne Trudel J.A., David Stratas J.A., and A.F. Scott J.A. (F.C.A.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Civilian employee was not entitled to additional entitlements Applicant was civilian employee of Department of National De- fence, required in course of his duties to f ly onboard Canadian Forces airplane that crashed. Ap- plicant was very seriously injured. Applicant elected to receive com- pensation under Flying Accidents Compensation Regulations (FAC Regulations) and was awarded pension based on 100 per cent in- capacity. Applicant's applications for additional benefits, including exceptional incapacity allow- ance, were denied even though he would have been entitled to them if he had been member of Cana- dian Forces under Pension Act. Applicant's appeals were denied. Applicant's application for judi- cial review was dismissed. Appli- cant appealed. Appeal dismissed. Only possible interpretation of s. 3(1)(a) of FAC Regulations and Pension Act was one adopted by Veterans Review and Appeal Board, namely that applicant was only entitled to "pension" and that additional entitlements were instead "allowances". There was no purposive interpretation that would allow ignoring clear words that pensions and allowances were different sorts of entitlement and that applicant's entitlement was equal to pension that would have been payable under Pension Act. Fact that FAC Regulations were not updated with respect to proper names of Schedules under Pension Act did not give rise to any ambiguity as review of relevant provisions showed that entitlement in such circum- stances had always been limited to pension. Additional allowance, listed in different Schedule, were clearly outside scope of compen- sation provided under s. 3(1)(a) of Regulations. Appeal Board's interpretation that applicant was not entitled to allowances was both reasonable and correct. Thomson v. Canada (At- torney General) (2016), 2016 CarswellNat 5258, 2016 FCA 253, Richard Boivin J.A., Don- ald J. Rennie J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 3723, 2015 CarswellNat 8987, 2015 FC 985, 2015 CF 985, Denis Gascon J. (F.C.). Ontario Civil Cases Conflict of Laws CONTRACTS Choice of law There was no error in analysis of juridical advantage Plaintiff signed employment contract in Ontario, but worked for over one year in New York. Plaintiff was dismissed for cause and brought wrongful dismissal action in Ontario. Defendant brought motion to stay plain- tiff 's action on basis that, relative to New York State, Ontario was forum non conveniens. Motion was dismissed. Defendant ap- pealed. Appeal dismissed. There was no error in master's analysis of juridical advantage. Master's analysis included finding that Ontario law would likely apply and that New York State was "at will" jurisdiction that does not recognize, and would not be ac- customed to applying, principles of wrongful dismissal and right to reasonable notice that are fa- miliar to judges in Ontario. This was legitimate factor to take into account, and there was nothing to contrary in Supreme Court of Canada decision cited by defen- dant. Master merely recognized existence of juridical advantage for plaintiff to have case decided by judge who is accustomed to applying governing legal con- cepts that are simply not part of New York law. Ontario Court of Appeal has recognized that ju- ridical advantage may be partic- ularly relevant where claims are simply unknown under U.S. law. Machado v. Catalyst Capi- tal Group Inc. (2016), 2016 CarswellOnt 16911, 2016 ONSC 6719, Molloy J. (Ont. Div. Ct.); affirmed (2015), 2015 Carswel- lOnt 15650, 2015 ONSC 6313, Master D.E. Short (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE No-fault benefits All disputes concerning entitlement to accident benefits are governed by scheme Dispute resolution process un- der Insurance Act. Insured W was injured during incident when garage door fell on him after moving vehicle out of ga- rage. Insurer A Co. denied in- sured's application for accident benefits on ground that incident was not "accident" as defined by s. 3(1) of Statutory Accident Ben- efits Schedule (SABS). Insured applied for mediation as con- templated by dispute resolution process scheme under s. 279 of Insurance Act. Insurer brought application for determination of whether insured was involved in "accident" as defined by s. 3.1 of SABS on basis that it was pre- liminary issue that had to be de- termined before scheme applied. Application judged dismissed application. Judge held that scheme governed all disputes concerning entitlement to acci- dent benefits, including whether claimant was involved in ac- cident and qualified as insured person under SABS. Judge found that this was not appropriate case for application. Insurer ap- pealed. Appeal dismissed. Judge was correct in holding that it governed all disputes concerning entitlement to benefits, including whether claimant was involved in accident. Scheme established comprehensive alternative pro- cess to courts. While court pro- ceedings might provide more expeditious process where it was determined claimant did not qualify as insured person, court proceeding would be duplicative where claimant did qualify as in- sured person. Having regard to purposes of Act and scheme, "in- sured person" as it appeared in scheme can reasonably be read as encompassing all persons claim- ing entitlement to benefits un- der SABS whether or not it was ultimately determined that they were entitled to benefits. Ayr Farmers Mutual Insur- ance Co. v. Wright (2016), 2016 CarswellOnt 16494, 2016 ONCA 789, Simmons J.A., E.E. Gillese J.A., and C.W. Hourigan J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 15632, 2015 ONSC 6219, P.R. Sweeny J. (Ont. S.C.J.). Deduction of non-earner benefit from long-term disability payments was permitted Insured received long-term dis- ability (LTD) income payments from insurer S Co. under its group insurance plan as result of insured's first accident. Insured received non-earner benefit (NEB) from her automobile in- surer under Statutory Accident Benefits Schedule as result of her second accident. Automo- bile insurer did not deduct LTD payments from amount of NEB payable. Under terms of group insurance plan, insurer was en- titled to reduce LTD payments by "any disability or retirement benefit...payable...under... pro- vincial auto insurance law", so it deducted NEB from its LTD payments. Application judge found that insurer was entitled to reduce LTD income pay- ments by amount of NEB. Judge found that words "any disabil- ity... benefit" in group insurance plan were broad enough to cover NEB, and that deduction of NEB was consistent with LTD policy being one of indemnity. Insured appealed. Appeal dismissed. Judge's interpretation was cor- rect. There was no dispute that NEB was payable under provin- cial auto insurance law and it was clearly disability benefit. Deduc- tion arose by virtue of terms of insurer's policy of insurance. Policy language was clear and unambiguous and mandated deduction. Deduction permit- ted by plain language of policy did not give insurer windfall. Hamblin v. Standard Life Assurance Co. of Canada (2016), 2016 CarswellOnt 17817, 2016 ONCA 854, G.R. Strathy C.J.O., G. Pardu J.A., and D.M. Brown J.A. (Ont. C.A.). Professions and Occupations BARRISTERS AND SOLICITORS Fees Application for assessment of accounts was dismissed Solicitors' accounts covered work done to defeat motion for certificate of pending litigation, as well as other work. Total of all accounts rendered by solicitors was $135,240. Applicant sought assessment of accounts, all of which had been paid. Applica- tion judge dismissed applica- tion. Applicant contended that judge erred in failing to make in- dependent assessment of wheth- er fees charged by solicitors were excessive. Applicant appealed. Appeal dismissed. Applicant did not challenge hourly rate, time spent or propriety of dis- bursements. In absence of any evidence reasonably leading to inference that accounts were ex- cessive, application judge did not err in declining to reason back- wards from amount of partial indemnity costs for part of work done by solicitors to conclusion that accounts for all work done were excessive. It was not shown that application judge made er- ror in principle or that result was unreasonable. Argument on appeal was essentially that appli- cation judge ought to have exer- cised his discretion differently. There was no basis to intervene. 267 O'Connor Ltd. v. Perley- Roberston, Hill & McDougall LLP (2016), 2016 CarswellOnt 17931, 2016 ONCA 853, G.R. Strathy C.J.O., G. Pardu J.A., and David Brown J.A. (Ont. C.A.). PROFESSIONS AND OCCUPATIONS Paralegals Appeal Panel of Law Society had jurisdiction to order costs Jurisdiction to award costs. Ap- plicant abandoned three applica- tions for paralegal license with law society. Applicant submitted notice of abandonment for third application three days prior to scheduled good character hear- ing and after law society had completed its investigation and hearing preparation. Law Society Hearing Panel determined that it had jurisdiction to order costs against applicant and ordered costs against him. Appeal Panel of Law Society upheld decision. Applicant brought application for judicial review. Application dismissed. Hearing Panel and Appeal Panel did not err in law in assuming and affirming ju- risdiction to award costs against applicant. Looking at context and applicant's history allowed Hearing Panel to reasonably find that applicant wasted law society's time without reasonable cause. Applicant was not denied procedural fairness. Applicant was on notice that there was risk of costs being awarded against him and instead of making sub- missions on quantum of costs and his ability to pay, he chose to make written submissions only on Hearing Panel's lack of juris- diction to award costs. Reasons were adequate on their face. Riddell v. Law Society of Upper Canada (2016), 2016 CarswellOnt 17019, 2016 ONSC 6631, Dambrot J., Baltman J., and Thorburn J. (Ont. Div. Ct.). Ontario Criminal Cases Criminal Law OFFENCES Impaired driving causing death Trial judge considered many strands of circumstantial evidence Accused and 15-year-old de- ceased travelled on accused's snowmobile, which failed to properly negotiate turn in road and collided with tree. Deceased was killed as result of collision. Single issue at trial was identity of driver of snowmobile. Accused was found guilty of impaired driv- ing causing death, driving with excessive alcohol causing death, and driving while disqualified. Accused's blood alcohol reading CASELAW

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