Canada: Court Of Appeal Summaries (August 11 To August 15)

Last Updated: August 29 2014
Article by John Polyzogopoulos

Hello all.  Yet again, another light week of decisions released by our Court of Appeal.  This week's topics include, (1) Citizenship and Immigration and Constitutional Law, in particular, whether being required to take the oath of allegiance to the Queen is constitutional when seeking Canadian citizenship; (2) jurisdiction simpliciter and forum non conveniens in the context of the BP Gulf oil spill shareholder class action; (3) Labour law in the context of applications for judicial review, namely whether an arbitrator has exclusive jurisdiction over matters covered under a collective bargaining agreement, to the exclusion of the Divisional Court; and (4) Family law – motions for directions and to extend time to appeal.

Wishing everyone a nice weekend.

John Polyzogopoulos

McAteer v. Canada (Attorney General), 2014 ONCA 578

[Weiler, Lauwers and Pardu  JJ.A.]

Counsel:

P. Rosenthal, S. Pieters and R. Chang, for the appellants

K. Dragaitis and S. Guthrie, for the respondent

Keywords:   Citizenship and Immigration, Citizenship Act, Oath of Allegiance, Constitutional Law, Charter of Rights and Freedoms, ss 1, 2(a), 2(b) and 15(1), Right to Freedom of Conscience and Religion, Right to Freedom of Expression, Equality Rights, Notwithstanding Clause, Oakes Test, Statutory Interpretation, Principle of Harmonization

Facts:

The appellants brought a constitutional challenge against s 24 of the Citizenship Act, which requires permanent residents to swear an oath to the Queen before they can become Canadian citizens. Specifically, they objected to the portion of the oath that states: "I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors."  The applications judge dismissed the application, finding that only ss 2(b) of the Charter of Rights and Freedoms had been breached (freedom of expression), but that the oath of allegiance was saved by s 1.  The applicants appealed.   The Attorney General cross-appealed on the issue of whether the oath of allegiance was a breach of the right to freedom of expression.

 Issues:

(1) Does the oath violate freedom of expression s 2(b) of the Charter of Rights and Freedoms?

(2) Does the oath violate freedom of conscience or religion under s 2(a)?

(3) Does the oath violate the right to equality under s 15(1)?

(4) If there are Charter violations are they saved under s 1?

Holding:

Appeal dismissed.  Cross-appeal allowed.

Reasoning:

(1) The reference to the Queen is symbolic of the Canadian form of government and the unwritten constitutional principle of democracy. The purpose of the oath is not to compel expression but to obtain a commitment to the Canadian form of government from those wishing to become Canadian citizens. Although the oath has an effect on the appellants' freedom of expression, the court found that constitutional disapprobation was not warranted and there was no violation of the right to freedom of expression under ss 2(b) of the Charter. It held that even if there was a violation of the right to freedom of expression, it was justified under s 1 of the Charter.

(2) There was no violation of the appellants' right to freedom of religion and freedom of conscience because the oath was secular and was not an oath to the Queen in her personal capacity; rather the oath was to the Canadian form of government, of which the Queen is a symbol.

(3) There was no violation of equality rights because (a) of an absence of objective evidence of discriminatory purpose or impact; (b) Parliament can determine the admission criteria for citizenship without being subject to an equality rights analysis on the grounds of the challengers' citizenship itself; and (c) the appellants' claim of adverse effect was based on a misconception of the meaning of the oath to the Queen as an individual.

Kaynes v. BP, PLC, 2014 ONCA 580

[Sharpe, Simmons and Benotto JJ.A.]

Counsel:

L. P. Lowenstein, L. K. Fric and K. O'Brien, for the appellant

J. Groia, A. Morganti and M. Stroh, for the respondent

Keywords: Securities law, Part XXIII.1 of the Securities Act, Sections 138.1 and 138.3 of the Securities Act, Private international law, Jurisdiction simpliciter, Forum non conveniens, Van Breda

Facts:

In the proposed class action, the respondent plaintiff alleges that the appellant (BP) made misrepresentations in documents it sent to its shareholders relating to the April 2010 British Petroleum Deep Water Horizon oil spill in the Gulf of Mexico. The appellant purchased 1,404 BP shares, over the NYSE. BP is a UK corporation headquartered in London, England and does not own any property in Canada or carry on business in Canada.  While BP was a reporting issuer under Ontario Securities law, its stock was delisted from the TSX in 2008, at which time BP provided an undertaking that it would continue to send relevant investor documents to its shareholders in Canada. The respondent's class action on behalf of shareholders who purchased BP shares between May 9, 2007 and May 28, 2010 is based on ss. 138.1 and 138.3 of the Securities Act (SA). A similar class action brought on behalf of all BP shareholders, including the plaintiff, was brought in Texas in which the Texas court refused to certify the class action, albeit with leave to make another attempt at certification. BP admits jurisdiction in respect of the class members who purchased their BP shares on the TSX but denied that Ontario had jurisdiction in respect of those shareholders in Ontario who had purchased their shares on the NYSE or other exchanges.  The motion judge found that s. 138.3 of the SA should be classified as a statutory tort and that there is nothing in the provision's broad language to restrict the statutory cause of action to investors who purchased their shares on an Ontario exchange. The motion judge further reasoned that s. 138.3 of the SA is a remedial provision designed to overcome the element of reliance necessary to make out a claim of the negligent misrepresentation at common law. Moreover, the motion judge found that the statutory tort must be considered to have been committed in Ontario because the location of the common law tort of misrepresentation is the place where the misrepresentation is received and relied upon and since s. 138.3 of the SA deems the investor to rely on such misrepresentation when purchasing shares, the statutory tort must be considered to have been committed in Ontario. Finally, the motion judge found that Ontario does have jurisdiction simpliciter and that it should not decline jurisdiction on the basis of forum non conveniens, partly on the basis on the desire to avoid a multiplicity of proceedings.

Issues:

(1) Did the motion judge err in finding that Ontario has jurisdiction over the claims of those class members who purchased their shares on foreign exchanges?

(2) Did the motion judge err in refusing to stay the claims of class members who purchased their shares on foreign exchanges on the basis of forum non conveniens?

Decision:

Appeal allowed. Applying the Supreme Court's decision in Van Breda, Ontario does have jusrisdiction simpliciter, but should decline jurisdiction on the ground of forum non conveniens.

Reasoning:

(1) No. By releasing a document outside the province that the appellant knew it was required to send to Ontario shareholders, it committed an act with sufficient connection to the province to qualify as the commission of a tort in Ontario. When the appellant released documents that it was legally required to provide its Ontario shareholders, it committed an act that had an immediate and direct connection with Ontario, an act that is sufficient to establish a real and substantial connection between the claim of the respondent and Ontario. Therefore, the statutory tort of secondary market misrepresentation was committed in Ontario.

(2) Yes. First, the motion judge failed to take into account the principle of comity in assessing the effect of exercising Ontario jurisdiction over claims arising from foreign traded securities. Second, the motion judge erred in law with respect to the related issue of avoiding a multiplicity of proceedings. Despite the minimal standard of simpliciter being made out, this is a case where the court should exercise its discretion to decline jurisdiction. Therefore, the claim must be considered in the full international context and asserting Ontario jurisdiction over the respondent's claim would be inconsistent with the approach taken under both US and UK law with respect to jurisdiction over claims for secondary market misrepresentation.

George v. Anishinabek (Police Service), 2014 ONCA 581

[Doherty, Cronk and Rouleau JJ.A.]

Counsel:

D. G. Cowling and A. Sinclair, for the appellants

L. A. Kinahan for the respondent

Keywords: Public Law, Judicial Review, Procedural Fairness, Labour Law, Collective Agreements, Police, Disciplinary Proceedings, Jurisdiction, Exclusive Jurisdiction Model

Facts:

The respondent, Derek George was a constable employed by the appellant, Anishinabek Police Service. George brought an application for judicial review in the Divisional Court. He sought an order to quash a decision of the Police Governing Authority extending time for service upon George of a notice of a discipline hearing into allegations of discreditable conduct made against Mr. George by the chief of police. The Divisional Court held that the failure to give notice of the application to extend time for the service of the notice breached the applicable standards of procedural fairness. The court quashed the order granting the extension and directed a new hearing. They also ordered that George be paid his salary for the period during which he was suspended without pay. The appellants contended, for the first time on their motion for leave to appeal to the Court of Appeal, that the Divisional Court had no jurisdiction to hear the application for judicial review and instead that as the dispute related to discipline, the issue fell within the authority of the existing collective agreement.

Issues:

(1) Did the Divisional Court have the jurisdiction to hear the application for judicial review?

Holding:

Appeal allowed.

Reasoning:

(1) No.  Notwithanding that the issue of jurisdiction was not raised before the Divisional Court and was raised for the first time on appeal, the Divisional Court had no jurisdiction to consider the issues raised on George's judicial review application. Instead, an arbitrator appointed under the collective agreement had exclusive jurisdiction to determine whether George was entitled, as a matter of procedural fairness, to notice of the application for extension of time. The Police Governing Authority is a party to a collective agreement with the Public Service Alliance of Canada and Mr. George is part of the bargaining unit. In Weber v Ontario Hydro, the Supreme Court of Canada endorsed the "exclusive jurisdiction model" and held that where controlling legislation gives jurisdiction over disputes that arise under a collective agreement to arbitrators, that entity has exclusive jurisdiction to determine all disputes arising out of the collective agreement. A determination of whether a dispute arises out of a collective agreement for the purposes of the Weber analysis requires a consideration of the nature of the dispute and an examination of the ambit of the collective agreement. The court held that the essential character of the dispute between George and the appellants was disciplinary in nature. In this case it was held that, any disputes over discipline shall be subject to the grievance provisions in the collective agreement. Therefore George had to seek his remedies through the grievance process in the collective agreement and not through an application for judicial review.

Timleck v. Beltrano, 2014 ONCA 585

[Pardu J.A., In Chambers]

Counsel:

S.W. Garfin, for the appellant

R. Beltrano and K. Beltrano, appearing in person

Keywords: Motion for Directions, Motion to Extend Time to Appeal, Rules of Civil Procedure- Rule 59.06, Trial Transcripts, Perfecting Appeal, Dismissal for Delay

Facts:

The appellant, April Timleck, brought a motion for directions from the court regarding the conduct of her current appeal. She also brought a motion to extend the time to appeal her current case before the Court of Appeal.

The basis for this appeal originates from the appellant's claim for spousal support and arrears of child support, as she alleged that the Respondent Mr. Beltrano acted fraudulently by concealing his income and ought to have paid more child support. Mr. Beltrano responded with a claim for child support for his son Andrew for the time that Andrew lived with him. This matter proceeded to trial where the trial judge, on April 27, 2012, ordered Ms. Timleck to pay child support to Mr. Beltrano for the time Andrew lived with him. Ms. Timleck was also ordered at trial to reimburse Mr. Beltrano for overpayments of child support for children in her custody, and for $45,000 in legal and court costs. 

Ms. Timleck responded to this trial judgment by filing a Notice of Appeal, but was unsuccessful in perfecting her appeal because of her failure to obtain complete trial transcripts.    

Issues:

(1) Should Ms. Timleck be granted another extension of time to perfect her appeal?

 Holding:

Motion dismissed.

Reasoning:

No. On February 21, 2013 Sharpe J.A. made an order on consent extending the time for Ms. Timleck to appeal from the original judgment of April 27, 2012 to "50 days following the determination of the rule 59.06 motion" before the trial judge. The rule 59.06 motion was heard on December 5, 2013, and the judge ruled against Ms. Timleck, finding that Mr. Beltrano had not acted fraudulently nor did he try to conceal his income. Since Ms. Timleck failed to appeal this order within 50 days of this date, and did not provide any adequate explanation for this failure, her motion to extend the time to perfect this appeal is dismissed. Costs were awarded to the Respondent, as the successful party, in the amount of $1,000. 

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