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Selected Canadian cases of importance and related court documents from Carswell’s Litigator collection:
Highlighted Cases
· Vilven v. Air Canada
· Taylor v. Canada (Attorney General)
· Pattison Outdoor Advertisting LP v. Toronto (City)
· Vancouver v. Zhang
· Abou-Elmaati v. Canada (Attorney General)
Constitutional; Labour and Employment; Public
Vilven v. Air Canada
2011 CarswellNat 257 (F.C.)
On February 3, 2011, the Federal Court of Canada ruled on the latest round in the dispute between Air Canada and two former pilots who, pursuant to the mandatory retirement provisions in their collective agreement, were forced to retire at age 60. In 2009, the Canadian Human Rights Tribunal had ruled that the mandatory retirement provisions in the Air Canada’s collective agreement with the Air Canada Pilot’s Association (ACPA) were inconsistent with the Canadian Charter of Rights and Freedoms and ordered that the pilots be reinstated and compensated for lost income. Air Canada and APCA applied judicial review of the decision. Held: The Federal Court agreed with the Tribunal’s decision on the Charter issue, finding that “normal age of retirement” rule, as protected under s. 15(1)(c) of the Canadian Human Rights Act, violates the right to equal protection of law guaranteed by the Charter and could not be saved by s. 1. On the question of whether the mandatory retirement policy could be justified as a bona fide occupational requirement, the Court found the Tribunal’s ruling to be unreasonable. Air Canada had argued that it could not accommodate pilots over the age of 60 without experiencing undue hardship in light of the age restrictions set out by the International Civil Aviation Organization. The Tribunal had rejected the argument, but the Court said it had merit. The Court ordered the Tribunal to rule on all three aspects of the Meiorin test, to determine whether Air Canada would suffer “undue hardship” from the disappearance of a mandatory retirement policy, post-November 2006.
Civil Practice and Procedure
Taylor v. Canada (Attorney General)
2011 CarswellOnt 1255 (Ont. C.A.)
This recent decision of the Ontario Court of Appeal provides an example of the rare scenario in which the Court will grant leave to have a special case determined. The plaintiff was a representative of a class of persons who claimed to have suffered injury as a result of the implantation of temporomandibular joints in their jaws. The claim was brought against the Attorney General of Canada for alleged negligence of Health Canada in the exercise of its regulatory duties, statutory powers and responsibilities. The action was certified in 2007 by Mr. Justice Cullity, who found that there was sufficient proximity between the parties for a finding of regulatory negligence. Following certification, the question of sufficient proximity was impacted by other appellate authorities. The parties chose to bring a joint motion to the Court of Appeal to request that the issue be settled as a "special case" pursuant to Rules 22.01 and 22.03 of the Rules of Civil Procedure. Held: The motion was allowed. The Court of Appeal cautioned that it will be a "rare case" where they will allow parties to bypass the Divisional Court; however, in this case it was appropriate to do so. The factors which influenced the Court’s decision included: the increased cost and delay of moving the case through the Divisional Court; the importance of the legal issue involved; the fact that the motion was on consent of both parties; and the inevitability that the issue would otherwise end up being heard by the Court of Appeal.
Public; Property; Constitutional; Evidence
Pattison Outdoor Advertising LP v. Toronto (City)
2011 CarswellOnt 1303 (Ont. S.C.J.)
In March of 2011, the Ontario Superior Court of Justice ruled on an application to quash the City of Toronto's Third Party Sign Tax bylaw, No. 197-2010. The bylaw was challenged on a number of grounds, including: (1) It imposed an indirect tax and thus contravened the City of Toronto Act and the Constitution Act, 1867; (2) It represented a tax on the revenues of the sign industry; and (3) It was enacted for an improper, collateral purpose and unlawfully discriminated against signs on non-City-owned property. Held: The Court upheld the ability of the City to impose a tax on the owners of third party signs, while grandfathering existing signage as of April 6, 2010. The Court noted that a significant purpose of the tax was to reduce sign clutter and environmental impact, which was consistent with the view that the signs themselves were to be taxed. Further, the tax was on the physical structure itself, not on the displayed advertising, and therefore did not attach to the commodity being marketed by the sign owner. The tax was rationally connected to legitimate municipal objectives and imposed an additional cost of doing business on the sign owner rather than an indirect means of raising revenue.
Public; Civil Practice and Procedure; Constitutional; Property
Vancouver v. Zhang
2010 CarswellBC 2758 (B.C. C.A.)
This decision concerned the constitutionality of a Vancouver city bylaw prohibiting the construction of new structures on the street without obtaining the written consent from the City. Commencing in August 2001, the respondents, who were practitioners of a spiritual discipline from ancient China, participated in a sit-in hunger strike, setting up banners and a makeshift shelter and meditation hut in front of the Chinese Consulate. Both structures encroached on the city street. The City brought a successful application for an injunction requiring the practitioners to remove the structures and prohibiting them from placing any structures on the street. At trial, the judge found that the practitioners’ method of expression, insofar as it involved structures, was excluded from protection of s. 2(b) of the Canadian Charter of Rights and Freedoms. The practitioners appealed. Held: The British Columbia Court of Appeal overturned the lower court decision and declared the provision of the by-law of no force and effect. The Court found that public streets are spaces in which political expression takes place and that the City's limitation on the use of a structure for the purpose of political expression was a violation of s. 2(b) of the Charter which was not justified under s. 1. While the prohibition in the bylaw was rationally connected to the City’s pressing and substantial objectives, the limitation did not minimally impair the practitioners’ rights to political expression. In this case, there was no regulation of political structures, only an absolute prohibition with an uncertain possibility of exception by Council on unknown grounds.
Civil Practice and Procedure; Constitutional; Evidence
Abou-Elmaati v. Canada (Attorney General)
2011 CarswellOnt 520 (Ont. C.A.)
The issue in this case was whether s. 38 of the Canada Evidence Act (CEA), conferring exclusive jurisdiction on the Federal Court of Canada to rule on Canada's claims for privilege on the grounds of national security, national defence and international relations, is constitutionally invalid for interfering with the core jurisdiction of the Superior Court as protected by the s. 96 of the Constitution Act, 1867. The appeal arose from several actions brought by individuals against the Canadian government for being complicit in the torture they sustained while under the custody of foreign governments. Canada disclosed numerous documents in redacted form, some of which were made pursuant to s. 38 of the CEA on the grounds of national security. Canada later asserted that it had inadvertently disclosed one document without redactions, gave notice under s. 38 not to disclose the document, and asked the respondents' counsel to return it. The respondents moved for an order requiring production of documents without redaction and filed a Notice of Constitutional Question putting in issue the constitutional validity or applicability of s. 38 of the CEA. The motion judge dismissed the respondents’ motion for production, but declared that where a claim is made to enforce the constitution in a civil proceeding, to the extent that s. 38 precludes a judge of the Superior Court of Justice at the trial of an action or the hearing of an application from judicially reviewing a claim of Crown privilege, it is of no force or effect. The Canadian government appealed that declaration and the respondents cross-appealed the dismissal of their motion. Held: The appeal was allowed. Section 38 was valid at the pre-trial stage. In relation to pre-trial discovery, s.38 did not deprive the Superior Court of the core jurisdiction protected by s. 96 of the Constitution Act, 1867 since such claims were unknown at the time of Confederation. The Court also found the motion judge to have erred in declaring s. 38 to be of no force or effect in relation to privilege claims advanced at trial as he lacked a concrete factual situation on which to base his decision.
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- 2011 CPCMotionF 41062 – Consolidated Factum of the Plaintiffs/Respondents on the Appeal, the Cross-appeal, and the Motion by the AG Canada to Quash Part of the Cross-appeal
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Updated July 2011 |