Law Times

Law Times • January 16, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Evidence PRIVILEGE Privileged communications Litigation privilege invoked by insurer could be asserted Litigation privilege. Fire dam- aged residence and one of in- surer's claims adjusters investi- gated claim. Syndic of Chambre de l'assurance de dommages later received information to effect that adjuster had made certain errors in managing file. In course of her inquiry, syndic asked insurer to send her com- plete copy of its claim file. Insur- er refused to do so on basis that some of requested documents were protected by litigation privilege. Syndic filed motion for declaratory judgment, arguing that s. 337 of Act respecting the distribution of financial prod- ucts and services (Que.) created obligation to produce "any (…) document" concerning activities of representative whose profes- sional conduct was being inves- tigated. Syndic further argued that litigation privilege should be applied more f lexibly than solicitor-client privilege as it was less important. Trial judge con- cluded that litigation privilege could not be abrogated absent express provision and syndic ap- pealed. Court of Appeal upheld trial judge's judgment. Syndic appealed before Supreme Court of Canada. Appeal dismissed. Litigation privilege is fundamen- tal principle of administration of justice . It is class privilege that exempts communications and documents that fall within its scope from compulsory disclo- sure, except where one of limited exceptions to non-disclosure ap- plies. Any legislative provision capable of interfering with liti- gation privilege should be read narrowly. Legislature may not abrogate that privilege by infer- ence, but may only do so using clear, explicit and unequivocal language. Because s. 337 of Act provided only for production of "any (…) document" without further precision, it did not have effect of abrogating privilege. It followed that insurer was en- titled to assert litigation privi- lege in this case and to refuse to provide syndic with documents that fell within scope of litigation privilege. None of exceptions to its application justified lifting privilege in this case. Therefore, courts below were right to hold that litigation privilege invoked by insurer could be asserted against syndic. Lizotte c. Aviva Cie d'assurance du Canada (2016), 2016 CarswellQue 10692, 2016 CarswellQue 10693, 2016 SCC 52, 2016 CSC 52, McLachlin C.J.C., Abella J., Cromwell J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 384, 2015 QCCA 152, Bich J.C.A., St-Pierre J.C.A., and Gagnon J.C.A. (C.A. Que.). Judges and Courts JURISDICTION Exchequer and Federal Courts Federal Court did not have jurisdiction over claim Applicant, which was incorpo- rated by special Act of Parlia- ment, An Act to incorporate The Canadian Transit Company ("CTC Act"), owned and oper- ated Canadian half of Ambas- sador Bridge connecting respon- dent city and Detroit, Michigan. Applicant had purchased more than 100 residential properties in respondent city with intention of eventually demolishing homes and using land to facilitate main- tenance and expansion of bridge and its facilities. Respondent city issued repair orders against prop- erties pursuant to municipal by- law. Applicant applied to Federal Court for declarations to effect that applicant had certain rights under CTC Act which super- seded bylaw and any repair or- ders issued under it. Respondent city brought successful motion to strike applicant's notice of ap- plication on ground that Federal Court lacked jurisdiction to hear application, and applicant suc- cessfully appealed. Respondent city appealed. Appeal allowed. Federal Court did not have ju- risdiction to decide whether re- spondent city's bylaws applied to applicant's residential proper- ties. In order to decide whether Federal Court had jurisdiction over claim, it was necessary to determine essential nature or character of that claim. Stated generally, issue was whether Federal Court had jurisdiction to decide claim that municipal bylaw was constitutionally inap- plicable or inoperative in relation to federal undertaking. First part of three-part test for jurisdiction, which required that federal stat- ute grant jurisdiction to Federal Court, was not met. Applicant was not seeking relief "under an Act of Parliament or otherwise" as required by s. 23(c) of Federal Courts Act, and s. 23(c) of Fed- eral Courts Act therefore did not grant jurisdiction over this appli- cation to Federal Court. Windsor (City) v. Canadian Transit Co. (2016), 2016 Car- swellNat 6466, 2016 CarswellNat 6467, 2016 SCC 54, 2016 CSC 54, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); re- versed (2015), 2015 CarswellNat 4835, 2015 CarswellNat 816, 2015 FCA 88, 2015 CAF 88, Eleanor R. Dawson J.A., David Stratas J.A., and A.F. Scott J.A. (F.C.A.). Federal Court of Appeal Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Environmental assessment Environmental Protection Act conferred significant discretion on Minister Genetically engineered organ- isms. Biotechnology company A Inc. owned rights to geneti- cally engineered Atlantic salmon which grew to market size signif- icantly more rapidly than wild or farmed salmon. A Inc. proposed to produce sterile, all-female salmon eggs for export to facility in Panama. Ministers of Envi- ronment and Health determined A Inc.'s salmon was not toxic or capable of becoming toxic and granted A Inc. waiver from ob- ligation to provide certain in- formation under Environmental Protection Act. Minister of Envi- ronment issued notice in Canada Gazette indicating scope of ac- tivities permitted and advising that any other activities would require separate consideration. Federal Court dismissed public interest group's application for judicial review. Federal Court determined that Ministers' de- cisions were made in manner prescribed by Act and were rea- sonable, that Ministers reason- ably decided A Inc.'s salmon was not toxic or capable of becoming toxic, and that Ministers consid- ered information with respect to potential uses and locations of introduction of A Inc.'s salmon. Federal Court held that publica- tion of notice of waiver occurred within reasonable time, that Act did not provide for public partic- ipation in toxicity assessments, that Minister of Environment's publication of notice of permit- ted activities was reasonable, that Notice was not overbroad, and that anyone seeking to engage in same activities in another loca- tion would still have to file notice and undergo new assessment. Public interest group appealed. Appeal dismissed. Federal Court committed no error warranting court's intervention. Act con- ferred significant discretion on Minister and decision was en- titled to deference. Group failed to show it was unreasonable for Minister to conclude that po- tential for exposure to environ- ment could be prevented. Scope of SNAc Notice could not be said to be overly broad or unreason- able. There was no absurdity or unreasonableness in Minister issuing SNAc Notice permit- ting wider range of uses of AAS than that permitted by s. 106(10). Finally, Federal Court did not breach duty of procedural fair- ness by arriving at own interpre- tation of legislation. Procedural fairness required that parties be able to make submissions about issues of statutory interpretation, but court's ability to decide issues correctly was not constrained by parties' submissions. Ecology Action Centre v. Canada (Minister of the Envi- ronment and Climate Change) (2016), 2016 CarswellNat 5289, 2016 FCA 258, Nadon J.A., Elea- nor R. Dawson J.A., and Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 10968, 2015 CarswellNat 7756, 2015 FC 1412, 2015 CF 1412, Russel W. Zinn J. (F.C.). Transportation RAILWAYS Federal regulatory boards There was no basis to interfere with agency's determination Canada Transportation Act pro- vided for maximum revenue en- titlements (MREs) for movement of western grain by prescribed 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 WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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