Law Times

Page 14 March 6, 2017 • Law TiMes www.lawtimesnews.com CASELAW Supreme Court of Canada Administrative Law PRIVATE LAW REMEDIES Damages for unlawful administrative action Any tort claim against board was barred by s. 43 of Energy Resources Conservation Act (Alta.) Plaintiff brought action against three defendants; energy corpo- ration, conservation board and province. Claim against corpo- ration was for alleged damage to water well which was source of fresh water for plaintiff 's home. Claim against board was for negligence in administration of regime and failure to respond to plaintiff 's concerns. Claim against province was based on resource development board's alleged failure to protect plain- tiff 's water supply or respond to complaints. Portions of statement of claim were struck. Plaintiff 's appeal was dismissed. Appellate court found case management judge correctly applied test for determining whether board owed private law duty of care. Appellate court found forcing board to consider extent to which it must balance interests of specific individu- als while attempting to regulate overall public interest would be unworkable in fact and bad policy in law. Appellate court found case management judge correctly concluded that any tort claim was barred by s. 43 of Energy Resources Conservation Act. Appellate court found in- terpreting section so that board and its members would only be protected for about half of their conduct would be absurd Ap- pellate court found case man- agement judge correctly con- cluded that s. 43 of Act barred Canadian Charter of Rights and Freedoms claim. Plaintiff appealed. Appeal dismissed. Plaintiff did not successfully challenge constitutionality of s. 43 of Act. Damages were not appropriate and just remedy for Charter violations by board. Judicial review was appropriate remedy. Board had public duty of balancing several potentially competing rights, interests and objectives. Allowing claims for damages against board had potential to deplete board's re- sources of money and time, and could result in defensive actions by board. Allowing Charter damages claims to be brought for board's actions and decisions had potential to distort appeal and review process. Requiring case-by-case examination of particular claims undermined purpose of immunity. Ernst v. Alberta Energy Reg- ulator (2017), 2017 CarswellAlta 32, 2017 CarswellAlta 33, 2017 SCC 1, 2017 CSC 1, McLach- lin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanisn J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellAlta 1588, 2014 ABCA 285, Jean Côté J.A., Jack Watson J.A., and Frans Slat- ter J.A. (Alta. C.A.). Federal Court of Appeal Human Rights WHAT CONSTITUTES DISCRIMINATION Race, ancestry or place of origin Law and facts before tribunal did not reasonably lead to finding of discrimination Complainant had worked for many years on term contracts as customs inspector. He had tried twice to secure permanent posi- tion but was turned down both times. Complainant filed unsuc- cessful complaint with Canadi- an Human Rights Commission alleging discrimination on basis of race, national or ethnic origin, age, and perceived disability of obesity. Decision was set aside on appeal and remitted for re- consideration, where second tri- bunal found in complainant's fa- vour. With respect to Vancouver competition, tribunal found that respondent had been wrongly disqualified. Attorney General for Canada ("AG") successfully sought judicial review of second tribunal's decision. Complain- ant appealed. Appeal dismissed. Judge was correct in finding that issue before tribunal was rela- tively narrow Tribunal's findings as to witness credibility were due less deference than credibility findings are usually given, be- cause tribunal based its deci- sion on transcript alone without advantage of hearing witnesses directly, but parties agreed that extensive record would be ad- equate for purposes of recon- sideration. Judge was correct in finding that law and facts before tribunal did not reasonably lead to finding of discrimination. Tribunal's decision was not sup- ported by record, and tribunal substituted its assessment of complainant's qualifications for that of selection board's when it held that complainant had been discriminated against. There was no basis for adverse credibil- ity findings made by tribunal in regards to AG's witnesses. Tribu- nal's decision did not fall within range of defensible outcomes based on facts and law. Turner v. Canada (Attor- ney General) (2017), 2017 Car- swellNat 17, 2017 FCA 2, M. Nadon J.A., A.F. Scott J.A., and J. Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5271, 2015 CarswellNat 9290, 2015 FC 1209, 2015 CF 1209, James W. O'Reilly J. (F.C.). Intellectual Property PATENTS Miscellaneous Six-year limitation period could not be applied to all acts of infringements Limitation period. Respondent AC Inc. claimed interest in 693 Patent. 693 Patent was issued on December 3, 1991, thus was sub- ject to application of old Patent Act, which did not have specific section dealing with limitation period applicable to infringement actions. Since 1993, in current version of Patent Act, s. 55.01 pro- vides that six-year time limitation applies to acts of infringement. AC Inc. brought infringement ac- tion against appellant A Inc. Fed- eral Court found that five claims, including Claim 1, were valid and had been infringed by A Inc. Fed- eral Court concluded that since 2004, and up to expiration of 693 Patent in 2008, A Inc. directly in- fringed 693 Patent by making and selling its product in Canada and induced infringement by its cus- tomers and by end-users through- out Canada. Federal Court held that six-year limitation applied to all acts of infringements by A Inc. A Inc. challenged time limitation applicable to certain products that were made, sold and delivered in Ontario and to which, in its view, two-year limitation should apply. It also contested that exportation of infringing products meant that six-year limitation applied. Ap- peal allowed in part. Judgment varied. If Federal Court's conclu- sion was based on its reading that words "a cause of action arising otherwise than in a province" in s. 39(2) of Act as though they said "all causes of action, any of which arose otherwise than in a single province", Federal Court erred in its interpretation. Indeed, having regard to text of s. 39(1) of Act and to provincial jurisdiction over property and civil rights and that each act of infringement con- stituted distinct cause of action, such interpretation was unrea- sonable. Where law is set out in statute, court must articulate law as it is defined in that statute. Here, statute requires inquiry into place where each cause of action arose. For purposes of limitation analy- sis, critical fact was that, following jurisprudence of this Court, cause of action arises in province if all elements of cause of action occur in that province. Hence provin- cial limitation period would apply to acts of infringement limited to single province. Federal Court could not simply apply six-year limitation set out in s. 39(2) to all infringing activities of A Inc. To that extent, Federal Court's judge- ment had to be modified to ref lect possibility that some transactions would be subject to applicable provincial limitation period. De- cision as to how that determina- tion should be done was best left to Federal Court. Apotex Inc. v. AstraZeneca Canada Inc. (2017), 2017 Car- swellNat 40, 2017 FCA 9, J.D. Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A. (F.C.A.); varied (2015), 2015 CarswellNat 2415, 2015 CarswellNat 5054, 2015 FC 671, 2015 CF 671, R.L. Barnes J. (F.C.). Ontario Civil Cases Civil Practice and Procedure COSTS Scale and quantum of costs Corporation's application for determination of rights was dismissed Corporation R Inc. and taxpayer K entered into minutes of settle- ment of taxpayers' employment action. Corporation concluded that its obligation under Income 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. 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