Law Times

Page 14 July 10, 2017 • law Times www.lawtimesnews.com CASELAW Supreme Court of Canada Natural Resources TIMBER Timber licences Court had no jurisdiction to review arbitrator's decision in regard to timber licence valuation methodology Parties entered into Settlement Framework Agreement, but were unable to settle issue of compensation under Forestry Revitalization Act for improve- ments made by T to land. Arbi- tration was held in accordance with Forestry Revitalization Act. Arbitrator found on statu- tory interpretation issue that proper valuation method was depreciation replacement cost method and on contractual interpretation issue that agree- ment reached by parties prior to arbitration did not exclude inter- est from province's payment of compensation to T for improve- ments. Arbitrator also deter- mined that T was not entitled to compensation for improvements to which it did not lose access. On appeal, application judge upheld arbitrator's award except in connection with statutory in- terpretation, which was remitted to arbitrator and resulted in ad- ditional award in amount equal to value of improvements. Court of Appeal reversed application judge's decision concluding that arbitrator erred on both statu- tory interpretation and contrac- tual interpretation issues as well as subsequent ruling regard- ing statutory application issue. T appealed. Appeal allowed in part. Arbitrator's initial valua- tion predicated on depreciation replacement cost methodology was restored. Arbitrator's initial ruling that province must pay interest on top of improvements compensation it owed to T was restored. Arbitrator's initial rul- ing denying compensation to T for improvements losses per- taining to lillooet licence was restored. Courts had no juris- diction to review arbitrator's decision in regard to whether arbitrator correctly applied valu- ation methodology to licence because it was mixed question. Courts' jurisdiction was limited to statutory interpretation issue of identifying pool of method- ologies consistent with Revital- ization Act. Teal Cedar Products Ltd. v. British Columbia (2017), 2017 CarswellBC 1648, 2017 CarswellBC 1649, 2017 SCC 32, 2017 CSC 32, McLachlin C.J.C., Abella J., Moldaver J., Karakat- sanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellBC 1550, 2015 BCCA 263, Lowry J.A., Chiasson J.A., and MacKenzie J.A. (B.C. C.A.). Federal Court of Appeal Immigration and Citizenship APPEALS TO FEDERAL COURT OF APPEAL AND SUPREME COURT OF CANADA Powers of court Appellant's removal deferred pending redetermination of application for permanent residence Appellant L was permanent resident of Canada, who held citizenship of his native Guy- ana. L did not make application for citizenship, despite having resided in Canada since 1966. L had 9-year-old daughter, whose mother was member of First Na- tions group giving child Indian status. L had custody of child, due to mother's substance abuse issues. L had criminal record, with most recent offence being 2003 conviction for assault caus- ing bodily harm. Accused was originally subject to deportation order as result of record, with order being stayed in 2005. Or- der was reactivated, when it was found that L had not complied with order. After daughter was born in 2007, L lived with moth- er and daughter. L established own residence in 2011, so that he could have custody as awarded by court. L made pre-removal risk assessment (PRRA) applica- tion in 2013, which was denied. L was to be removed in 2014. L filed applications to re-open appeal, for permanent resident status on humanitarian and compassionate (H&C) grounds and request to defer removal. L claimed that child would be removed from Aboriginal heri- tage if forced to live in Guyana with him. Deferral request was denied. L appealed from this decision. Appeal allowed. Short- term best interests of child did include consideration of Ab- original heritage. Enforcement officer did not take into account short-term impact of L's depor- tation on child. Child was vul- nerable as child of Aboriginal heritage. Assumption that child would be able to return to Cana- da at some point was unreason- able. There was no one else avail- able to take care of child on full- time basis in Canada. L was not willing to make child ward of state. There was no opportunity for child to maintain connection to heritage in Guyana. L's defer- ral application was remitted to another enforcement officer for redetermination, in accordance with court's reasons. Lewis v. Canada (Public Safety and Emergency Pre- paredness) (2017), 2017 Car- swellNat 2764, 2017 FCA 130, David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Glea- son J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10508, 2015 CarswellNat 6206, 2015 FC 1309, 2015 CF 1309, Annis J. (F.C.). Tax INCOME TAX Administration and enforcement Chief Justice did not have power to remove file from judge Taxpayer's appeal was heard by one judge of Tax Court. Nearly two years later, Chief Justice of Tax Court removed file from that judge and reassigned it to another judge of Tax Court to render judgment, on consent of parties. Taxpayer appealed on ground that Chief Justice did not have power to remove file from judge who heard appeal and reassign it to another judge to render decision. Appeal al- lowed. Even though parties did not raise this issue at trial, it was matter that must be addressed. Chief Justice did not have power to remove file from judge who heard appeal and reassign it to another judge to render judg- ment, for reasons set out in similar case. Conclusion and reasons in similar case were ap- plicable to this case. Judgment rendered by second judge was nullity and matter was referred to judge who heard tax appeal to render judgment. Findings of fact were to be made by judge who heard tax appeal. Birchcliff Energy Ltd. v. R. (2017), 2017 CarswellNat 1821, 2017 FCA 89, David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10756, 2015 CarswellNat 4799, 2015 TCC 232, 2015 CCI 232, Robert J. Hogan J. (T.C.C. [General Pro- cedure]). Federal Court Law Enforcement Agencies PARTICULAR POLICE AND SECURITY FORCES Canadian Security Intelligence Service Canadian Security Intelligence Service human source privilege not applicable to designated judge Issue arose as to proper pro- cedure to be followed when government claimed privilege pursuant to s. 18.1 of Canadian Security Intelligence Service Act (CSIS Act) applied to in camera ex parte proceeding. As result of Federal Court of Appeal de- cision, class privilege applied to facts involving CSIS human source. At issue was whether redacted information produced may be viewed in un-redacted form by designated judge. Pur- poses of privilege set out in s. 18.1 of CSIS Act were to en- sure that identity of CSIS human sources remained confidential to protect their life and security, and to encourage individuals to provide information to CSIS. In any proceeding before court, disclosure of identity of CSIS human source or any informa- tion from which identity of CSIS human source may be identified was forbidden, but order could be sought declaring that individ- ual was not CSIS human source or that information sought did not identify CSIS human source or that identity of CSIS human source was essential to establish- ing innocence of accused. CSIS human source privilege of s. 18.1 of CSIS Act was not applicable to designated judge. Section 38.01(6)(d) of Canada Evidence Act was strong indicator that Parliament expected designated judge to receive extremely sensi- tive national security informa- tion, as designated judge was 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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