THE LAWYERS WEEKLY
March 18, 2011 | 17
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ABORIGINAL LAW
CONSULTATION – Consultation
with First Nation to take place within
environmental assessment process.
Appeal from a decision dismissing
appellant’s application for judicial review
of respondent’s order under s. 11 of the
Environmental Assessment Act (B.C.)
regarding the extension of a landfill site.
The extension would occupy land over
which a First Nation claimed aboriginal
rights and title. Appellant Tribal Council
argued that it had a right to be consulted
regarding the proposal and that respondent’s order setting out the methods and
procedures for assessment was flawed
because it lacked a provision requiring
consultation with appellant. The project assessment director acknowledged a
right to some consultation and amended
the order to provide appellant an opportunity to be consulted outside of the formal process established by the order. The
chambers judge found that the Crown
did not fail in its duty to consult with the
First Nation.
HELD: Appeal allowed. The chambers
judge erred in finding that adequate consultation could occur outside the bounds
of a s. 11 order. The Crown was not entitled
to balance its obligation to consult with its
obligation to carry out its statutory duty in
an effective manner. The Crown’s duty to
act honourably toward First Nations made
consultation a constitutional imperative
that could not be compromised in order
to make the process more efficient. While
respondent did nothing wrong in drafting
the initial order and terms of reference, he
had ongoing obligations to consult with
appellant. Denying appellant a role within
the assessment process was denying it
access to an important part of the high-level planning process. The order had
to set out the scope of any First Nations
consultation that was to take place as part
of the assessment process.
Nlaka’pamux Nation Tribal Council
v. British Columbia (Project Assessment
Director, Environmental Assessment
Office), [2011] B.C.J. No. 251, B.C.C.A.,
per Groberman J.A. (Rowles and Smith
JJ.A. concurring), Feb. 18/11. Digest
No. 3042-001 (Approx. 20 pp.)
ADMINISTRATIVE LAW
FAIRNESS – Academic appeal’s com-
mittee of university did not breach rules
of natural justice or procedural fairness
in upholding applicant’s dismissal from
university program.
Application for judicial review of a
decision of respondent university’s aca-
demic appeal’s committee involuntarily
withdrawing applicant from the Radio-
logical Technology Program at the uni-
versity. Applicant had difficulties with
a practicum course and had to repeat
it. His instructors and supervisors were
dissatisfied with his performance and
he was dismissed from the program. An
appeal to the committee was allowed and
applicant was readmitted to the program.
However, he was subsequently involved
in an incident involving a patient, which
was reported by a medical radiation tech-
nologist. Applicant was again dismissed
from the program and his appeal was
dismissed. Applicant submitted that his
right to natural justice was denied by the
failure of his accuser to appear before
the committee and be subjected to cross-
examination and by the denial of proced-
ural fairness.
ARBITRATION
POWERS OF ARBITRATOR – Arbi-
trator able to deal with any delays by
party to arbitration.
Appeal from the refusal of an arbitra-
tor to dismiss respondent’s arbitration
claim for want of prosecution. Appellant
manufacturer sold specialty meat prod-
ucts. Respondent provided warehousing
and distribution services to businesses
in the grocery industry. The parties and
their predecessors were parties to certain
warehouse agreements that required that
all disputes arising out of or in connec-
tion with the agreements be resolved by
arbitration. Respondent issued a notice
to arbitrate in March 2000. Not all of
the claims were resolved. Other claims
of respondent were referred to the arbi-
trator in July 2003. At a pre-arbitration
conference in September 2003, respond-
ent was ordered to produce certain
expert reports. However, only one report
was produced and there was no further
activity until the fall of 2007. In June
2009 the remaining reports were deliv-
ered without any explanation for the
delay. Respondent also purported to add
a new claim to the arbitration. Appellant
brought a motion seeking the dismissal
of the claims for want of prosecution.
The arbitrator found that he was power-
less to dismiss the claims in the absence
of an express power. A chambers judge
upheld the decision of the arbitrator
finding that the arbitrator could deal
with the evidence in such a way that the
goals of reaching a determination on
the merits and ensuring that all parties
were treated fairly and without preju-
dice, could be achieved despite the delay.
BANKRUPTCY
& INSOLVENCY
FAMILY PROPERTY – Wife’s equal-
ization claim did not take priority over
claims of other creditors in bankrupt
estate of husband.
Appeal from a decision granting the
wife’s equalization claim priority over the
claims of other creditors in the bankrupt
estate of the husband and transferring
the husband’s bankruptcy-exempt RRSP
to the wife to defray costs related to the
equalization payment. The husband made
his assignment in bankruptcy on Oct.
16, 2008. On Oct. 17, 2008 an arbitrator decided that the husband was to pay
$264,469 in equalization to the wife and
lump sum support arrears of $85,293
from his one-half share of the matrimonial
home. The decision was incorporated into
a court order. Respondent bank obtained
leave to stand in the place of the husband’s trustee for the purpose of realizing
on his $302,000 net equity in the home,
subject to his wife’s priority status for
certain support payments. The bank had
an unsecured claim against the husband’s
estate for $169,000. On Feb. 3, 2009, the
wife was granted an order on consent for
the release of $171,000 held in trust from
the home’s proceeds of sale. The motions
judge found the previous order created
an equitable trust in favour of the wife
with respect to the husband’s share of the
home’s sale proceeds, therefore entitling
her to priority over the creditors in the
husband’s bankruptcy.
HELD: Appeal allowed. The arbitrator’s award did not effect a division of
property prior to the date of the husband’s
bankruptcy. The husband’s share of the
sale proceeds vested in the trustee when
the husband made his assignment, with
the result that the husband had no property rights in the sale at the time the Oct.
17, 2008 order was made. Neither the arbitration award nor the Oct. 17, 2008 order
gave rise to a trust in favour of the wife.
The wife was just one of the unsecured
creditors in the husband’s estate.
Thibodeau v. Thibodeau, [2011]
O.J. No. 573, Ont. C.A., per Blair J.A.
(Sharpe and Rouleau JJ.A. concur-
ring), Feb. 10/11. Digest No. 3042-004
(Approx. 17 pp.)
PROPOSALS – Approval of proposal
was set aside because administrator
underestimated net realizable value of
debtors’ assets.
Application by an administrator for an
order approving the joint consumer proposal of the debtors. The debtors were
a married couple who became insolvent
because of the failure of their business.
Neither of the debtors had made a proposal
or an assignment before. The debtors’ total
unsecured debt was $932,239. That was
in addition to a secured debt of $338,001
against their principal residence, which
was their sole substantial asset. The proposal offered the payment of $30,000 over
60 months, at the rate of $500 per month
in satisfaction of the total unsecured debt.
It also provided for the payment of $1,150
per month on two secured debts, and further payments towards two other secured
debts. The proposal was approved by 56
per cent of the creditors. The proposal was
opposed by the Canada Revenue Agency,
which had an unsecured debt of $328,952,
and by a bank, which had an unsecured
debt claim of $57,000.
HELD: Application dismissed. The proposal was unreasonable and unfair to the
unsecured creditors. The administrator
underestimated the net realizable value
of the assets available by $30,000. That
brought into question the administrator’s
estimated rate of return per dollar under
the proposal. It was no longer evident that
the proposal would be more beneficial to
the unsecured creditors than a bankruptcy
proceeding would have been. In fact, since
the proposal was less beneficial it could
not be considered fair. Consequently, the
proposal could not be approved.
Schryburt (Re), [2011] O.J. No. 610,
Ont. S.C. Bkcy., Linhares de Sousa
J., Feb. 10/11. Digest No. 3042-005
(Approx. 5 pp.)
CIVIL PROCEDURE
COSTS – Motion judge erred in
awarding costs against appellant despite
her success on a motion challenging
court’s jurisdiction.
Appeal from an award of costs granted
in favour of respondent. Appellant was a
resident of Florida. Her estranged husband
and his brother were directors of respondent, a company based in Nova Scotia. In
December 2009 respondent applied for
an order that appellant unlawfully copied
the hard drive of one of its computers. It
sought return of the copy and an injunction
prohibiting use or communication of the
information it contained. In January 2010
appellant brought a motion in Florida contending that Nova Scotia did not have jurisdiction over the subject matter of respondent’s application, or if it did, that Florida
was the more convenient forum. Two days
prior to hearing the motion, she appeared
in Florida court to have it take possession
of the hard drive copy in order to preserve
the information therein for disclosure in
