Leave Applications Granted

The Supreme Court (“SCC”) yesterday granted leave to appeal in five cases. They dismissed a further 13 applications.

Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2006 BCCA 529

This is likely to be the highest-profile of the five cases granted leave yesterday. In this case, the respondents (who include the BC Teachers’ Federation as well as the Canadian Federation of Students) are seeking to overturn policies made by British Columbia Transit and Translink (the Vancouver transportation authority) prohibiting the sale of advertising space for ads of a political nature. They sought a declaration that the policy infringed their right to freedom of expression.

Both the trial judge and the Court of Appeal (“BCCA”) held that the transit authorities were governmental actors and that the Charter applied to their actions. However, the trial judge found that the policy was not an infringement of freedom of expression. He held that the outside of buses was not a public space where the respondents could reasonably expect the right to express themselves. The Court of Appeal overturned this, finding that the right to advertise on the side of buses does indeed come within s. 2(b) protection and that the effect of the policy was to infringe the appellants’ rights.

The BCCA did not undertake a section 1 analysis. The trial judge had found that the policy did not constitute “law” as required by the text of section 1. Therefore, the limit on the respondents’ rights could not constitute a reasonable limit “prescribed by law”. Since the BCCA had not received arguments from the parties on the issue, it simply noted that “Transit and TransLink have not met the threshold issue of establishing that the policies are law within the meaning of s. 1.”

This discussion clouded the question of remedies, but the BCCA said that if the policies were not law, they would be ruled of no force and effect under s. 24(1) of the Charter, and if they were law, the same declaration would be available under s. 52(1). In an interesting twist, they suggested that because of this difficulty, the decision on remedies should not be seen as having precedential value.

In a brief, but very pointed dissent, Justice Southin asked: “If the Legislature establishes a quasi-commercial corporate entity that operates a “medium of communication”, is that corporation constitutionally obliged to do what a medium of communication owned by a private individual is not obliged to do, that is, provide a citizen with the opportunity to express himself, or may the corporation choose what “expressions” it will carry? I have asked myself whether the framers of the Charter and the legislators of Canada who concurred in it would, if asked the question, have answered “yes”.”

Of course, she wasn’t going to leave that question unanswered:

“I do not know, but, to my mind, to answer the question “yes” is to diminish the dignity of the Charter, the underlying purpose of which, surely, was to protect the citizen from oppression by those set in authority over him. I see no oppression in a medium of communication, whoever owns it, declining to carry the appellants’ advertising.”

Superintendent of Financial Services v. National Bank of Canada, et al., 2007 CanLII 29663 (ON SC)

The Supreme Court will also be hearing a case involving the fall out from the bankruptcy of Ivaco and its related group of companies. At issue is a conflict between creditor banks and employee pension plans that were owed contributions at the time when the companies became insolvent.

When the companies became insolvent they obtained court-ordered protection under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”). As a result, all claims of creditors were stayed. A later order stayed the Companies’ obligation to pay outstanding past service contributions and special payments to the non-union pension plans. Unfortunately, the companies were ultimately unable to restructure. In late 2004, virtually all of their assets were sold. All that remains are the proceeds of sale. The Superintendent of Financial Services, representing the employees and retirees, brought a motion for an order that part of the sale proceeds be used to satisfy the unpaid past service and special contributions, which the Companies are deemed to hold in trust for the beneficiaries of the pension plans under Ontario’s Pension Benefits Act, RSO 1990, c P.8, ss 57(3), (4). Alternatively, the Superintendent sought an order segregating this amount in a separate account. Two of the Companies’ lenders, the Bank of Nova Scotia and the National Bank, brought motions for an order lifting the stay under the CCAA and petitioning the Companies into bankruptcy.

The Ontario Superior Court of Justice dismissed the Superintendent’s motion and partly granted the banks’ motions. The court lifted the stay under the CCAA and permitted the bankruptcy petitions to proceed, but did not put the Companies into bankruptcy. The court further ordered that the head offices of two companies involved be moved from Quebec to Ontario to facilitate bankruptcy proceedings. The Ontario Court of Appeal unanimously dismissed the appeal.

Domfer Metal Powders Ltd. v. Comité d’environnement de Ville-Émard (C.E.V.E.) Ciment du St-Laurent inc. v. Barrette, 2006 QCCA 1394 (CanLII)

The SCC will also be hearing an appeal in a class action over air pollution. The class action was commenced in 1997 against Domfer Metal Powders, with the plaintiffs alleging that dust and noise caused by Domfer’s plant were causing discomfort, annoyance and property damage. They sought damages as well as a permanent injunction. A hearing was held from September 2001 to January 2002, and the action was dismissed in October 2002.

The Court of Appeal reversed this decision. They held that “fault, damage, and a chain of causality between the two” had been established, and that, accordingly, the class action should succeed. The Quebec Court of Appeal (“QCCA”) reviewed the plaintiffs’ damage claims and awarded some of them. They held that an injunction was not necessary as Domfer had already remedied the problems.

This decision was released by the QCCA on the same day as its decision on similar matters in Ciment du St-Laurent inc. c. Barrette, and cites that decision. Ciment du St. Laurent was also granted leave to appeal yesterday.

M.T. v. J Y. T. (Y v X), 2006 QCCA 1353 (CanLII)

The final appeal also comes out of Quebec and deals with the division of pension assets following a divorce. The trial judge had ordered that a pension fund be partitioned equally between the spouses. The QCCA held that the judge had incorrectly applied the rules, and that in light of the circumstances, the pension fund should not be included in the partitioning of assets.