Granted (1)

Intellectual Property/Universities: Copyright 

York University v. Copyright Licensing Agency2020 FCA 77 (39222)
Access Copyright commenced an action against York University (“York”) to enforce an interim tariff set by the Copyright Board of Canada as it relates to copying activities by York’s employees between September 1, 2011 and December 31, 2013. The fees payable related to the paper copying of course packs for York students, digital copying through learning management systems, and other copying. York defended on the basis the interim tariff was not approved and therefore cannot be enforced but is only binding on consent. York counterclaimed, requesting a declaration that any reproductions made by its employees that fell within the Fair Dealing Guidelines it imposed come under the “fair dealing” exception in s. 29  of the Copyright Act. The Federal Court granted Access Copyright a declaration York, either directly or vicariously, from September 2011 to December 2013, reproduced and authorized the reproduction of copyright protected works and must pay royalties to Access Copyright under the interim tariff. The Court held York’s Guidelines were not fair in either their terms or their application and it dismissed York’s counterclaim and claim for declaratory relief. The Fed. C.A. allowed York’s appeal, set aside the Federal Court decision and dismissed Access Copyright’s action on the basis the interim tariff is not mandatory for users who do not opt for a licence. The Court dismissed York’s appeal of the dismissal of its counterclaim. “The applications for leave to appeal…are granted with costs in the cause.”

Dismissed (8)

Arbitration: Jurisdiction 

Groupe Dimension Multi Vétérinaire inc. v. Vaillancourt2020 QCCS 1134 (39198)
The Applicant filed a notice of arbitration against two of its shareholders, seeking a declaration certain transfers of shares could not be set up against it. It alleged its shareholders had contravened the provisions of the shareholders’ agreement in conducting those transactions. One of the shareholders asked the arbitration tribunal to make several remedial orders because of the Applicant’s allegedly oppressive conduct toward him. The Applicant contested that measure, arguing it was not within the scope of the arbitration clause. The arbitration tribunal found it had jurisdiction. The Superior Court recognized the arbitrator’s jurisdiction and dismissed the Applicant’s application. “The application for leave to appeal…is dismissed with no order as to costs. Côté J. took no part in the judgment.”

Civil Procedure/Defamation: Anti-SLAPP 

B’Nai Brith Canada v. Lascaris2019 ONCA 163 (38614)
Ontario was the first province to legislate anti‑“SLAPP” legislation (Strategic Lawsuits Against Public Participation), in November 2015. The Protection of Public Participation Act, 2015, amended the Courts of Justice Act to introduce ss. 137.1 to 137.5 which sections created a new pretrial procedure which allowed defendants to move expeditiously and early in the litigation for an order dismissing claims arising out of expressions by defendants on matters of public interest. The underlying action in this case was one of libel and slander. The Applicant, B’Nai Brith Canada, is a charitable organization involved in human rights and advocacy initiatives for the Canadian Jewish community. The Respondent, Mr. Lascaris, is a lawyer, human rights advocate, independent journalist and former leadership candidate and justice critic for the federal Green Party. Mr. Lascaris was publicly criticized by B’Nai Brith for having met, while in Israel, with the father of an alleged terrorist. Citing this meeting, and by way of two separate publications, B’Nai Brith accused Mr. Lascaris of being an advocate of terrorists. Mr. Lascaris initiated a claim in libel and slander, and B’Nai Brith brought a motion for an order dismissing the action pursuant to the new anti‑SLAPP regime. B’Nai Brith was initially successful before the motion judge, but Mr. Lascaris’ action was reinstated on appeal. “The application for leave to appeal…is dismissed with costs.”

Class Actions in Québec: Electricity Charges 

Hydro-Québec v. Molima2020 QCCA 357 (39138)
The Respondent brought a class action against the Applicant, Hydro‑Québec, alleging it had accumulated surpluses from 2008 to 2013 by exceeding the rates of return on equity authorized by the Régie de l’énergie. The Respondent claimed $1.2B for excessive electricity charges paid by the members of the class. The Superior Court allowed the application for authorization to institute a class action against Hydro‑Québec, finding the proposed action met the arguable case threshold and the proceeding in its true essence was an action for damages based on extracontractual civil liability, not a collateral attack on electricity rates. The C.A. dismissed the motion for leave to appeal. It found the factual elements provided by Hydro‑Québec to contest the allegations of fault made against it might constitute a valid defence on the merits, but not an argument for granting leave to appeal from the authorization of a class action. “The application for leave to appeal…is dismissed.”

Lobbying: Judicial Review 

Democracy Watch v. Canada (Attorney General)2020 FCA 69 (39202)
A complaint was filed by a private citizen with the Office of the Commissioner of Lobbying asserting Prince Sha Karim Al Hussaini Aga Khan (Aga Khan) was in breach of the Lobbying Act  and the Lobbyists’ Code by gifting a New Year vacation on his private Caribbean island to Prime Minister Justin Trudeau and his family. The Aga Khan Foundation is a registered lobbyist under the Act. The Aga Khan sits on the Board of the Foundation in an unpaid position, as a volunteer. The Office of the Lobbying Commissioner began an internal review process, and the Director of Investigations recommended the file be closed without further investigation on the basis the Lobbyists’ Code does not apply to the Aga Khan’s interactions with the Prime Minister.  There was no evidence the Aga Khan was remunerated for his work with the Foundation or that he was engaged in registrable lobbying activity during the Prime Minister’s Christmas vacation. The interim Commissioner concluded an investigation was not necessary to ensure compliance with the Lobbyists’ Code or the Act  and informed the complainant. The Applicant, Democracy Watch, brought an application for judicial review. The Federal Court held the Commissioner’s decision was subject to judicial review and was unreasonable. It granted the application for judicial review, set aside the Commissioner’s decision and returned the matter to the Commissioner of Lobbying for redetermination in accordance with its reasons. The Fed. C.A. allowed the appeal, set aside the Fed. Court decision and dismissed the application for judicial review. Interpreting the Act, it held as there was no obligation upon the Commissioner to act on a complaint by the public, her decision not to investigate the complaint in this case was not subject to judicial review. “The application for leave to appeal…is dismissed with costs.”

Mining Law: Crown Liability; Disguised Expropriation 

Strateco Resources Inc. v. Québec (Attorney General)2020 QCCA 18 (39085)
In 2005, the Applicant, a mineral exploration company, acquired mining claims on category III lands under the James Bay and Northern Quebec Agreement for the purpose of operating a proposed uranium mine. From 2008 to 2012, it undertook an extensive authorization process to carry out the advanced underground exploration phase of its project, which involved an environmental assessment process and required a certificate of authorization be obtained from the provincial government. In March 2013, because of opposition from local Cree communities, the provincial government announced it was suspending the issuance of certificates of authorization in relation to uranium production. In November 2013, the government notified the Applicant of its refusal to issue the certificate of authorization. The Applicant brought an action in damages against the Attorney General of Quebec for almost $200M. The Superior Court dismissed the Applicant’s claim, concluding it had been open to the government to consider social acceptability in refusing to issue the certificate of authorization in question and that the decision in this regard had not been made in bad faith. The court also concluded the Applicant was entitled to no compensation, because its claims had not been expropriated.  The C.A. dismissed the Applicant’s appeal, holding the government had not committed a fault in basing its refusal on a lack of social acceptability, the moratorium and the refusal to issue the certificate had not constituted a disguised expropriation of the claims, and the government had not breached its duty of coherence. “The motion by Grand Council of the Crees (Eeyou Istchee), Cree Nation Government and Cree Nation of Mistissini to be granted party status is dismissed. The application for leave to appeal…is dismissed with costs.”

Professions/Civil Procedure: Counsel of Record; Discipline 

Leahy v. Minister of Justice, 2020 FCA (39254)
The Applicant’s licence to practise law in Ontario was revoked on December 10, 2014, and not been reinstated. Mr. Leahy maintained he was entitled to practise as counsel of record in the Federal Courts. In 2017, three Federal Court proceedings in which Mr. Leahy purported to act as counsel were held in abeyance after the Department of Justice faxed a letter to the Federal Court, advising Mr. Leahy had been disbarred, but appeared to be acting on behalf of litigants before the Federal Court. Mr. Leahy applied for judicial review of the communications between the Law Society of Ontario (“LSO”) and the Department of Justice. He sought an order barring the Department of Justice from seeking the interference of the LSO in pending litigation, an order requiring the Department of Justice to comply with the Federal Court Rules and a declaration he could appear as counsel in the Federal Courts in light of s. 11(2)  of the Federal Courts Act, and by authorization of the Ont. C.A. certificate issued in 1991, allowing him to appear in the Ontario courts. The Respondent brought a motion to strike the application, which was granted. Mr. Leahy’s appeal was allowed in part. The Fed. C.A. remitted for reconsideration Mr. Leahy’s request for a declaration that he be able to appear before the Federal Court despite not being a member of the LSO. The Federal Court dismissed his application in July, 2019. When Mr. Leahy attempted to file a notice of appeal in January, 2020, he was advised this would require a motion for an extension of time. Mr. Leahy brought the motion for an extension of time that was dismissed. “The application for leave to appeal…is dismissed with costs.”

Tax: Capital Property 

Atlantic Packaging Products Ltd. v. R., 2020 FCA 75 (39218)
The Applicant Atlantic Packaging was a paper products manufacturer. In 2009, it did a rollover of certain assets of its tissue division to 7228392 Canada Inc. in exchange for the latter’s common shares. Atlantic Packaging ultimately sold those common shares to Cascades Canada Inc. When Atlantic Packaging filed its tax return, it reported the gain on the sale of the shares as a capital gain, in reliance of s. 54.2  of the Income Tax Act. The Minister of National Revenue concluded it could not rely on s. 54.2  to deem the shares to have been capital property. The Tax Court dismissed Atlantic Packaging’s appeals. It concluded since the assets transferred by Atlantic Packaging to 7228392 Canada Inc. would make up only 68% of the total assets of its tissue division, the test under s. 54.2  of the Income Tax Act  was not met. The Fed. C.A. unanimously dismissed the appeals. “The application for leave to appeal…is dismissed with costs.”

Universities: Research Funding; Conflicts of Interest 

Oleynik v. Canada (Attorney General)2018 FC 737 (39118)
The Applicant, Dr. Oleynik, is a tenured professor of sociology at Memorial University of Newfoundland who unsuccessfully applied to the Social Sciences and Humanities Research Council of Canada (“SSHRC”) for research funding. He appealed the SSHRC decision through its internal appeals process. His main submission on internal appeal was the adjudication committee chair, who was part of the senior management team of a university with which he had previously been involved in extensive litigation, was in a conflict of interest that was neither properly declared nor managed. The appeals committee upheld the scores originally assigned to Dr. Oleynik’s application, thus confirming SSHRC’s refusal to offer funding. Dr. Oleynik then alleged conflicts of interest arising also at the appeals committee stage. The Federal Court dismissed Dr. Oleynik’s application for judicial review, having found no conflict of interest was established within the meaning of SSHRC’s appeals policy. The Fed. C.A. dismissed Dr. Oleynik’s appeal. The court recognized the limits of SSHRC’s policies and found the appropriate solution was to apply the common law test for reasonable apprehension of bias through the policies. However, even on application of the common law, the court still found Dr. Oleynik had not met his burden of establishing a reasonable apprehension of bias. “The application for leave to appeal…is dismissed with costs.”

Remanded (1)

Contracts: Unconscionability 

Gustafson v. Input Capital Corp., 2019 SKCA 78 (38880)
This Leave stemmed from an offer by the Respondent, Input Capital Corp. (ICC), to purchase canola from the Applicant, Mr. Gustafson, and related farming corporations (together, Gustafson Farms). That bargain was struck early in 2014 and amended over time to provide for the delivery of canola in 2014 and into the future. The parties entered into a series of agreements for Gustafson Farms to deliver 1,790 tonnes of canola in 2014 and 6,240 tonnes in 2015, with an ongoing annual delivery requirement of 2,490 tonnes, in consideration for an upfront payment of $4.5M from ICC as well as future payments at times of delivery. By the fall of 2015, Gustafson Farms had defaulted under all but the First Spot Contract by failing to deliver the canola ICC had purchased. The trial judge was satisfied, in the circumstances of this case, the Purchase Agreement, the Streaming Contracts, the Amending Agreement, the Collateral Mortgage, the Collateral Security Agreements and the Mortgage Amending Agreement were unconscionable and must all be set aside. The C.A. held the trial judge erred in his interpretation of the Agreements and misapprehended the contractual relationship between the parties leading him to erroneously conclude the Agreements were unconscionable and the Agreements were void and unenforceable in their entirety. The C.A. set aside the trial judge’s findings and allowed the appeal. “Pursuant to subsection 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal…is remanded to the Court of Appeal for Saskatchewan for disposition in accordance with Uber Technologies Inc. v. Heller, 2020 SCC 16.”