Flags of China and Australia

Access on the Table: the ChAFTA and Lessons for Canada

By Jesse I. Goldman and George W.H.  Reid

On November 17, 2014, the governments of Australia and the People’s Republic of China signed a declaration of intent on the China-Australia Free Trade Agreement (ChAFTA), bringing to a close 24 rounds of negotiations conducted over 10 years. While text of the ChAFTA is not public pending legal review and translation, official announcements make clear that China has granted Australia surprisingly broad access to both its goods and its developing services markets. There are important lessons for Canada as a result.

Canada, like Australia, has a developed economy with an abundance of natural resources (The service sectors of both countries are around 70 percent of GDP. Sources: The World Bank and Statistics Canada). While there are important differences between Canada and Australia (e.g., proximity to China) the ChAFTA contains important lessons for Canada as it pursues deepened trading relationships in Asia and China in particular. The message for Canada in the ChAFTA is clear: Canada is falling behind in securing market access for goods, services, and investment in China. (more…)

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CBSA CLVS Seizure Policy Targets Exporters and Ups the Ante on Non-Resident Importers

By Darrel H. Pearson and Sabrina A. Bandali

Background to the Courier Low Value Shipment (CLVS) Program

When goods are purchased through e-commerce or mail order, conventionally Canadian consumers or non-resident importers (i.e., the exporters in most cases) undertake import compliance. Most Canadian consumers are not well versed in customs laws relating to valuation of goods, and simply pay the duty and GST determined by the assigned customs broker/courier in order to obtain the ordered goods. On the other hand, foreign exporters who act as non-resident importers into Canada have a much better understanding of customs valuation, and the benefits derived from use of the CLVS Program, and the CBSA is concerned that there is significant undervaluation used as a means to obtain access to the CLVS Program. The CLVS Program allows for streamlined and simplified customs processing of shipments valued at CAD$2,500 or less, enabling the expedited release of goods imported through the program.[1] (more…)

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Pelvic X-Ray

Certification Denied: Product Liability Cases are not “Quintessential” Class Actions

By Mike A. Eizenga, Gavin H. Finlayson and Ashley L. Paterson

Certification was denied in a recent proposed multiple-model product liability class action before the Ontario Superior Court of Justice in O’Brien v Bard Canada Inc. We acted for the defendants.

The case concerned over 15 different medical products intended for permanent implantation in the female pelvis to treat various types of pelvic organ prolapse and stress urinary incontinence. The products differed in multiple ways, including their material makeup, shape, size, weight, density, weave, porosity, flexibility, configuration, fixation methodology, design purpose and product warning. The plaintiffs alleged all of Bard’s products were negligently designed and that Bard failed to warn of their associated dangers. (more…)

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Alberta Court of Appeal Affirms Sanctity of Solicitor-Client Privilege under FOIPPA

By Martin Kratz, Michael Whitt, Stephen Burns and Alastair D.L. MacKinnon

In University of Calgary v JR, 2015 ABCA 118, the Alberta Court of Appeal strongly affirmed the central importance of solicitor-client privilege to the proper functioning of the legal system. At issue was whether the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 [FOIPPA], authorized the Alberta Privacy Commissioner (or her delegate) to compel a public body to produce to the Commissioner records over which solicitor-client privilege is claimed in order to determine the veracity of the privilege claim. The Court of Appeal held that the Commissioner does not have such power.

The issue arose in the context of a wrongful dismissal claim by JR against her former employer, the University of Calgary. In addition to the usual exchange of records in the course of litigation, JR also made an access to information request under FOIPPA for all records in the University’s possession relating to her. In response, the University produced some records, but objected to producing others on the basis of solicitor-client privilege. JR asked the Commissioner to review the University’s response to the access request, and in particular the University’s assertion of solicitor-client privilege. (more…)

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Conflicting Decisions on Whether Parallel Class Actions Constitute An Abuse of Process

By Ashley Paterson

Two recent decisions of the Nova Scotia Court of Appeal and the Court of Queen’s Bench of Alberta have come to opposite conclusions regarding whether it is an abuse of process to file the same class proceeding in multiple jurisdictions: BCE Inc v Gillis and Turner v Bell Mobility.

Both cases were filed by the same law firm and concerned the same allegations related to system access fees charged to owners of cellular phones. Proposed class actions were filed in nine jurisdictions across Canada, including Nova Scotia, Alberta and Saskatchewan. A class action was certified in Saskatchewan and, as a result, the defendants in Nova Scotia and Alberta sought to strike out or stay the actions in those jurisdictions on the basis that it was an abuse of process due to the ongoing action in Saskatchewan. (more…)

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Election Act 101 for Apartment and Condominium Owners and Managers

By Alixe Cameron and Christie Conway

Alberta’s provincial election is fast approaching and that can only mean two things: bright-eyed candidates door-knocking across the province, and an increasing number of calls to our office from landlords and property managers asking us if they actually have to let these would-be-MPs into their buildings.

Whether or not you relish the opportunity to debate with your local candidates on the pressing political issues of the day, or are, shall we say, less-than-thrilled to be pulled away from your quality Netflix-and-sweatpant-time (also known as evenings and weekends), most of us have some opinion about door-to-door campaigning. However, whatever your personal prerogative may be when it comes to the age-old election practice of door-knocking, if you happen to own or manage an apartment building, condominium building, or even a gated community or mobile home park, there are a few things you need to know. (more…)

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Duty to Consult Not Triggered for Exploration Dispositions: Saskatchewan Court of Appeal

By Laura GillMike Theroux, Shawn Munro and Aaron Rankin

The grant of exploration dispositions for oil sands located beneath treaty lands did not trigger the Crown’s duty to consult, the Saskatchewan Court of Appeal held recently in Buffalo River Dene Nation v Ministry of Energy and Resources and Scott Land and Lease Ltd, 2015 SKCA 31. In upholding the initial decision of the Saskatchewan Court of Queen’s Bench on judicial review (discussed in an earlier blog here), the Court concluded that the posting for sale and issuance of the exploration dispositions (the “Permits”) involving lands on which members of Buffalo River Dene Nation (“BRDN”) exercise Treaty 10 rights did not have the potential to adversely affect those rights primarily because the Permits did not confer a right to enter on the surface of the lands.

The test for whether the Crown has a duty to consult involves consideration of three parts: (1) whether the Crown has knowledge of a potential Aboriginal claim or right; (2) the nature of the contemplated Crown conduct; and (3) the potential for that conduct to adversely affect an Aboriginal claim or right. In Buffalo River, only the third element was contested: whether the posting and issuance of the Permits had the potential to adversely affect BRDN. BRDN’s concern was limited to the potential adverse impacts that might result from a permit holder attempting to access or exploit the minerals underlying treaty lands, rather than any potential impact resulting from the mere sale of mineral rights. (more…)

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Train detail

Uncharted Territory: Individual Settlements in Certified Class Actions

By William A. Bortolin

Despite the passage of more than 20 years since the enactment of Ontario’s Class Proceedings Act, 1992, there is limited jurisprudence on post-certification procedures. In his recent decision in Lundy v Via Rail Canada Inc, Justice Perell addressed a series of novel issues that arise when a defendant attempts to offer individual settlements to class members of a certified class proceeding. Justice Perell ultimately held that:

  1. individual settlement offers cannot be communicated to class members until after the close of the common issue stage of the proceeding, and (if there are individual issues) the issuance of an individual issues litigation plan;
  2. individual settlement offers can be accepted without court approval, but should not include any allocation for costs or legal fees; and
  3. costs for class counsel must be assessed at the end of the common issues stage, so as to “wipe” the “litigation slate” clean at the commencement of the individual issues stage.

The plaintiff in Lundy claimed against the defendant for negligence and breach of contract, for a train derailment. The class proceeding was certified on consent, with a class size of 45 passengers (after opt-outs). The defendant admitted most of the proposed common issues, leaving mainly individual issues of causation and damages to be determined. After negotiations with class counsel for a class-wide settlement failed, the defendant formulated individual settlement offers. However, class counsel refused to distribute these offers to the class members, because there had not yet been any judgment on the common issues.  (more…)

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BC Court of Appeal Overturns Ruling that BC Government Liable to Logging Company for Failure to Consult

By Laura Gill, Mike Theroux, and E. Bruce Mellett

In Moulton Contracting Ltd. v British Columbia, 2015 BCCA 89, the BC Court of Appeal recently overturned the trial judge’s decision (reported at 2013 BCSC 2348, and summarized in an earlier update here) which had awarded $1.75 million in damages against the Province of BC for failing to inform Moulton Contracting Ltd. (“Moulton”), a logging company, of the dissatisfaction expressed by certain members of the Fort Nelson First Nation (the “FNFN”) regarding two Timber Sales Licenses (the “Licenses”) granted by the Province to Moulton.

The litigation began in 2006 when Moulton sued the Province, the FNFN and certain individual members of the FNFN for losses suffered as a result of a road blockade obstructing Moulton’s logging access road. The BC Supreme Court dismissed the action against the FNFN and individual defendants, but found the Province liable for failing to inform Moulton of the threat against its logging activities advanced by an individual member of the FNFN. The Court imposed liability based upon breach of an alleged implied term in the Licenses that “the Province was not aware of any First Nation expressing dissatisfaction with the consultation undertaken by the Province, save as the Province had disclosed to Moulton Contracting.” The trial judge also held the Province concurrently liable for negligent misrepresentation on the same basis. (more…)

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BC Supreme Court to Consider Cumulative Impacts of Resource Development on Treaty Rights

By Laura Gill, Mike Theroux, Shawn Munro, and Wally Braul

On March 3, 2015, Blueberry River First Nation (“BRFN”) sued the Province of BC seeking to break new ground by considering the cumulative impacts of resource development on BRFN’s traditional territory and treaty rights. Members of BRFN are ancestors to signatories to Treaty 8 and its traditional territory lies in the Upper Peace River region in northeastern BC. The outcome of the litigation will directly impact the development of BC’s planned Site C hydroelectric dam on the Peace River (“Site C”) and development of the Montney gas fields located within BRFN’s traditional territory.

The concept of “cumulative impacts” refers to the combined effects of multiple industrial activities on the livelihood of First Nations over time. Treaty 8 grants the right to hunt, trap and fish throughout surrendered lands, except on tracts that are required to be taken up by the Crown from time to time for settlement, mining, lumbering, trading or other purposes. The Crown’s right to take up lands is subject to the duty to consult and, if appropriate, accommodate the concerns of affected First Nations. (more…)

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