Legal Feeds Blog
By the slimmest of majorities, the Supreme Court of Canada found in favour of the City of Edmonton in applying a standard of reasonableness in a case involving a municipal assessment dispute with a corporate taxpayer.
|Gil Ludwig says the debate is still alive in terms of where the law is going around standard of review.|
“The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing,” wrote Justice Andromache Karakatsanis for the majority.
“The appropriate standard of review of the Assessment Review Board’s decision is correctness,” which is concerned with the rule of law, Justices Suzanne Côté and Russell Brown wrote for the minority that included the chief justice. “Expertise is a relative concept. It is not absolute.”
The disagreement over whether the standard of review in the case should be reasonableness versus correctness “shows that that court is still in a little bit of flux, or uncertainty around the question of standard of review,” says Gil Ludwig of Wilson Laycraft in Calgary, which represented the respondent along with Gowling WLG (Canada) in Ottawa. “That is, it still leaves the debate alive in terms of where the law is going around standard of review, in my view.
“Our argument was that on pure question of law and jurisdiction, with the statutory right of appeal to the court on significant questions of law, as the minority said, that is the correct standard,” he adds.
The value of the Capilano Mall in Edmonton was assessed at $31 million in 2011; the company disputed this assessment and sought a reduction in the assessed value to $22 million. The City of Edmonton then discovered what it determined to be an error in its original assessment and requested that the board increase the assessed value to $45 million. The board ultimately increased the assessment to around $41 million. On appeal to the Alberta Court of Queen’s Bench, the Board’s decision was set aside, which was affirmed on appeal to the Alberta Court of Appeal.
There are two important aspects of the Supreme Court’s decision, says Cam Ashmore, a lawyer for the City of Edmonton who argued the case in front of the court. “The first is in the context of assessment law . . . The court essentially held that the longstanding practice of the Assessment Review Board in Alberta — being able to increase assessment when the municipality felt it was too low — was upheld. That made sure that all taxpayers will have to bear their fair share of the tax burden . . . That was longstanding law prior to the court’s decision, so it reverted back to that longstanding law.”
The second important aspect was that the court upheld the standard of reasonableness, he says, “which it had been doing in various cases, across the board and in various contexts ever since the Dunsmuir case came out. This was another case where the reasonable standard was upheld when the tribunal was interpreting what was essentially their home statute, that they had a lot of familiarity with.”
This simplifies the standard of review analysis, Ashmore says. “At least the majority of the Supreme Court continues to recognize that we’re spending too much time arguing about standard of review, and not enough time about the substance of the case.”
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With president-elect Donald Trump headed to the White House the North American Free Trade agreement and Trans Pacific Partnership are in question, but some suggest it could mean Canada may be in an “enviable” trade position over the next four years.
|Riyaz Dattu says the U.S. probably won't follow through on the TPP at this time.|
Traditionally, the countries that have pushed trade initiatives on a major scale have been the United States and the European Union.
“The U.S. may lag behind because negotiations on trade agreements are the mandate of the president and given Trump’s position on NAFTA and the TPP it’s hard to see, at least in the immediate future, the U.S. taking any great initiatives,” he says.
Canada has an agreement with the EU on the Canada-European Union Comprehensive Economic and Trade Agreement that will be implemented over time. With that in place European investors may see Canada as a potentially attractive place to invest and as a launching point for trade with the United States.
As for the Trans Pacific Partnership, John Baird, former Canadian foreign minister and now senior business adviser with Bennett Jones LLP says last night’s election outcome probably signals the end of the road for TPP.
“I think the TPP is dead,” says John Baird. “The American participation in the TPP is incredibly important and the likelihood of the United States passing the TPP in the lame duck session is very unlikely and dead on arrival on the new president’s desk. As to whether Canada wants to work on a TPP without the United States, we’ll see.”
Dattu agrees the U.S. probably won’t follow through on the TPP at this time.
“If Hilary Clinton had been elected then Obama could have attempted getting TPP through congress, but that is not likely to happen. It would be very difficult under the current political climate in the United States,” he says.
Throughout the U.S. presidential campaign Trump said he would tear up NAFTA. Greg Kanargelidis, partner at Blake Cassels and Graydon LLP says it’s hard to know what Trump would want to change, not to mention whether Canada and Mexico would agree to the changes.
“It’s hard to provide specifics because president-elect Trump didn’t give any during the election campaign,” says Kanargelidis. “Tearing up NAFTA could mean just that — that the U.S. decides to get out of NAFTA. There is a right of any party to get out of NAFTA but I think once he gets some advice from the people he will appoint I think talk might turn to trying to renegotiate parts of NAFTA.”
The criticism of NAFTA through the election was that it has resulted in jobs leaving the U.S. While NAFTA has eliminated all tariffs on goods traded between the U.S., Canada and Mexico, in order to qualify the goods have to be made in the U.S. or substantially transformed in the U.S. to benefit from the duty free treatment.
Kanargelidis doesn’t agree that NAFTA caused jobs to leave the U.S. and there is “ample evidence” that in the more than 20 years NAFTA has been in existence that it has benefited the U.S., Mexico and Canada.
“What ultimately may happen is there will be discussions around how to improve NAFTA and that will require the involvement of both Canada and Mexico,” he says.
Dattu isn’t as concerned about the rhetoric directed at NAFTA that took place during the election.
“If in fact NAFTA is revoked by the United States that will take a period of time but we also have in place the Canada-U.S. Free Trade Agreement. I can see that potentially being revived if anything happened to NAFTA. That could provide the basis for stronger commitment between Canada and the United States,” he says, acknowledging that could have greater impact on Mexico.
“There’s going to be a great period of uncertainty but when the dust settles and as the Canadian government continues to advocate we will be in a better position down the road,” says Dattu.
There is also the Transatlantic Trade and Investment Partnership between the European Union and the United States that is also up in the air.
While Dattu is optimistic, Baird says with Bernie Sanders getting 46 per cent of the vote in the primaries and with Trump’s campaign against trade there is a “considerable rise of protectionism on both sides of the aisle and that spells bad news for Canada as we try and tackle bilateral issues.”
He says there will be less ability to resolve issues Canadians face around softwood lumber, the thickening of the border and on joint initiatives such as the Detroit River International Crossing project.
Baird says to expect the Iran nuclear file to also be reopened.
“I think that’s a huge question as to what the future holds for the Iran deal. The reality is the sanctions have been lifted and there are a lot of European companies have signed commercial contracts,” he says.
|Immigration lawyer Guidy Mamann says the volume of inquiries his firm has fielded from Americans wanting to ‘turn their backs on their country and American identity is actually quite remarkable.’|
Immigration lawyer Guidy Mamann, founding partner of immigration law firm Mamann Sandaluk & Kingwell LLP, says his firm always receives a handful of inquiries from Americans unhappy with the results of an election and looking to make a move to Canada, but “the volume we’ve received this year is unprecedented.”
“We’ve got more emails in the past few hours than we have in all previous campaigns,” Mamann says. “Americans are amongst the most patriotic people in the world and for them to actually think seriously about turning their backs on their country and American identity is actually quite remarkable.”
The tone of the inquiries is very different this year too, he notes — there’s an exhaustion, a sense of futility. It’s a “very, very historic time,” he says.“There is a visceral reaction to the election results and the perceived direction that the United States is about to embark upon."
As the republican presidential nominee inched closer to a surprising victory in the United States’ presidential election last night, disbelieving Americans began visiting the Citizenship and Immigration Canada website — so many, in fact, that the site temporarily crashed.
Mario Bellissimo, of Bellissimo Law Group, says the response to the very divided election was one he can only compare to the hotly contested Bush/Gore election in 2000.
“We’ve got a lot of calls, a lot of emails today,” he says. “Anxious people as the election was unfolding last night were already emailing. I think it’s somewhat unprecedented, at least in my lifetime, in terms of some of the issues that were raised.”
Bellissimo says because of the immigration website going down, they are currently unable to access the portal to file or review applications.
He points out immigration was a very hot issue in the presidential debates, and “some of the racial and ethnic divides became part of the narrative so I think that’s playing into the anxiety of many in terms of what their place might be in the United States moving forward and then they look to Canada as a potential solution.”
Reports say Internet searches about moving or immigrating to Canada spiked Tuesday night, ranking as a top trending Google search, as poll results rolled in red. Over one million tweets from the U.S. referenced Canada.
Mamann says every U.S. election brings chatter of moving to Canada from those not happy with the choice of the electorate, and that dies down after a few days. But in the case of this election, momentum only seems to be growing.
But moving to Canada isn’t as easy as it may seem — or as easy as Americans may wish it to be.
Mamann says it’s expensive and takes time. Canada is set to accept a record number of 300,000 people in 2017, including the specific allotment of refugees set out by the federal government. There is a set of categories with targets within each, Mamann says, as laid out on the federal government’s website.
Bellissimo adds that some people want to come temporarily to see how things play out in the United States, and those applications can be facilitated more quickly. He also sees the recent changes to Canada’s system aimed at processing applications faster as making the country more attractive to Americans who last checked in after the Bush/Gore election.
Regardless of what length of time an American might seek to stay in Canada, and whatever their reasons for the move, “there are no special privileges or favouritism given to any persons coming to Canada as a permanent residence by virtue of nationality — the fact you’re an American is not going to score you any more points than if you were a citizen of Russia or China or South Africa,” Mamann says.
Anyone can apply under the categories, assuming they meet certain criteria. Young candidates — those in their 20s and 30s — as well as those with a post-secondary education or a skilled trade with a few years of experience under their belts and a healthy savings account will get maximum points, he says.
Those with the most points are put in a pool and every month or two “the government goes fishing and skims the top candidates,” Mamann says.
A candidate can stay in the pool for a year, and if they aren’t selected have to register again.
Bellissimo says immigration lawyers will be “watching very closely how the policy unfolds in the United States in terms of any mass deportations, how the amnesty situation is dealt with, NAFTA, border perimeter control — all of these issues will inevitably affect Canadian immigration law and policy.”
With a Republican president, house and senate Trump is well-positioned to make changes.
“We’ll see if the tone remains the same or if we now shift into governance which is often, as we know, a lot more difficult than stating political positions during a campaign,” he says. “What becomes reality, what really is a priority in the first 100 days — it’ll be very interesting to see how it plays out.”
In the wake of the Comprehensive Economic and Trade Agreement signing, the federal government has introduced an amendment bill into Parliament that will provide for a two-year drug patent term extension and drug litigation proceedings will be turned into full actions.
|Bereskin & Parr LLP lawyer Noel Courage says new rules will give pharmaceutical companies two more years of patent protection.|
Bill C-30, An Act to implement the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, was introduced on Oct. 31. It will implement portions of CETA and provide authority to replace the current summary Notice of Compliance proceedings with full patent infringement and validity actions.
It will mean final determinations on infringement and validity issues, which Noel Courage, partner at Bereskin & Parr LLP in Toronto, says will reduce the multiplicity of litigation and improving brand-name companies’ rights to appeal trial decisions.
“They are turning the NOC proceedings from an application into actions, saying instead of being an application procedure or a prohibition order, we’re just going to turn it into a patent infringement action and it will be decided with finality,” Courage says. “We don’t know what that system is going to look like, but they’ve empowered the government to pass regulations to overhaul the NOC proceedings.”
There are two reasons for this move: to reduce multiplicity of litigation and to improve the ability of brand-name companies to appeal these cases.
“With patent infringement you are often suing someone after they are on the market and chasing the horse after the barn door is open,” says Courage. “It can dismantle the brand-name company’s marketplace fairly quickly.”
The new rules are also giving pharmaceutical companies two more years of patent room.
“In the pharmaceutical business, the last couple of years in a patent life are usually the most valuable because it takes so long to get through the regulatory system and get approval by Health Canada, get on the market and get awareness amongst physicians,” he says.
Eligible drugs will include human and veterinary drugs. A maximum two years of additional patent rights for an approved drug will be available by a Supplementary Protection Certificate. The Canadian SPC system is based on the European SPC system.
“It’s fairly narrow what they’re doing for the pharmaceutical industry, but it’s something that’s been done in the U.S. for years and in Europe for years so it’s part of the give and take in the CETA negotiations,” says Courage.
“It definitely makes a difference to pharmaceutical companies being able to have another couple of years of maximum profit,” he says.
The Supreme Court of Canada’s three hearings this week are in civil cases, including a patent infringement case, a lawyer’s challenge to his Bar, and a Charter case concerning collective agreements.
November 8 – Federal – AstraZeneca Canada v. Apotex
Civil: The applicants owned a patent for esomeprazole, a proton pump inhibitor used in the reduction of gastric acid, reflux esophagitis and related conditions. It was sold under the name Nexium, and was a very successful product for AstraZeneca. The respondents applied to the Minister of Health to obtain a Notice of Compliance which would allow it to sell its generic version of the drug; AstraZeneca then brought a prohibition application under the Patented Medicines Regulations to prevent Apotex from entering the market until after the expiry of its patent. In 2010, that application was dismissed and Apotex commenced sales of its generic esomeprazole. AstraZeneca brought an action against Apotex for patent infringement, and Apotex counterclaimed to impeach the patent.
Civil: Sidney Green, who was called to the Bar of Manitoba in 1955, did not comply with the Law Society of Manitoba’s requirement to complete a minimum of twelve hours of annual continuing professional development activities. Green challenged those rules under which the LSM had suspended his practicing certificate, arguing that The Legal Profession Act did not explicitly permit the LSM to enact mandatory CPD rules and to enforce those rules with the imposition of a suspension. He also argued that the rules violated the principles of natural justice because they gave the LSM authority to impose a suspension without a right of hearing or appeal.
Read the Manitoba appellate court decision
Read related news stories:
Manitoba lawyer vows to take CPD fight to top court, Canadian Lawyer
Can a lawyer be compelled to learn? CanLII connects
November 10 – British Columbia – British Columbia Teachers’ Federation v. R.
Charter of Rights: In 2002, British Columbia passed two statutes dealing with collective agreements for public sector workers in the field of education: the Education Flexibility and Choice Act and the Education Services Collective Agreement Amendment Act. In 2011, the Supreme Court of British Columbia found the legislation unconstitutional because it infringed s. 2 (d) of the Charter, and the infringement was not justified under s. 1 of the Charter. British Columbia then enacted a new statute, The Education Improvement Act, that included sections previously declared unconstitutional, and the BCTF challenged the new act’s constitutionality. The trial judge granted the BCTF declaratory relief plus $2 million in Charter damages; the Court of Appeal for British Columbia allowed the appeal but set aside the damages award.
Read the British Columbia appellate court decision
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