incompetence. The proposed intervention
could be accommodated within the
existing process of the appeal. There was
no prejudice to the accused from the proposed intervention, as he had put the quality of his legal representation at issue. The
proposed intervention would best assist
the court with the determination of the
issue. Refusal of the motion would have
required the Crown to review a privileged
relationship in a scenario where a new
trial was a possible outcome of a successful
appeal. The conditions of intervention
were limited to the allegation of ineffective
counsel and would not permit submissions
by trial counsel on whether a miscarriage
of justice resulted from any ineffective representation established.
R. v. Ross, [2012] N.S.J. No. 27, Nova
Scotia Court of Appeal, J.E. Fichaud
J.A., January 23, 2012.
NATURAL RESOURCES LAW
MEDIA
TELECOMMUNICATIONS – Licens-
ing of telecommunication carriers –
Broadcast undertaking – Forbearance –
Internet service providers.
Appeal by Alliance of Canadian Cinema, Television and Radio Artists, et al
from the Federal Court of Appeal’s decision that internet service providers do not
carry on broadcasting undertakings. In a
1999 report, the Canadian Radio-tele-vision and Telecommunications Commission (“CRTC”) concluded that the term
“broadcasting” in s. 2(1) of the Broadcasting Act included programs transmitted to
end-users over the internet. The CRTC
concluded that it was not necessary to
regulate broadcasting undertakings that
provided broadcasting services through
the internet and exempted these “new
media broadcasting undertakings” from
the requirements of the Act. In 2008, the
CRTC revisited this exemption. The CRTC
subsequently applied for a reference for a
determination of whether retail internet
service providers (“ISPs”) carry on, in
whole or in part, “broadcasting undertakings” subject to the Broadcasting Act
when, in their role as ISPs, they provide
access through the internet to “
broadcasting” requested by end-users.
HELD: Appeal dismissed. The terms
“broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Act, were not
meant to capture entities which merely
provided the mode of transmission. The Act
made it clear that “broadcasting undertakings” were assumed to have some measure
of control over programming. The policy
objectives listed under s. 3(1) of the Act
focused on content and an ISP did not
engage with these policy objectives when it
was merely providing the mode of transmission. When providing access to the internet,
which was the only function of ISPs placed
in issue by the reference question, they took
no part in the selection, origination, or
packaging of content. The Court of Appeal
correctly determined that the term “
broadcasting undertaking” did not contemplate
an entity with no role to play in contributing
to the Act’s policy objectives.
Reference re Broadcasting Act,
[2012] S.C.J. No. 4, Supreme Court of
Canada, McLachlin C.J. and LeBel,
Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis
JJ., February 9, 2012.
FORESTRY AND TIMBER – Log-
ging grounds – Conservation and for-
estry management – Protected areas
and parks.
Appeal by the Crown from the decision
allowing the respondent’s appeal in part
from an arbitrator’s compensation award
for losses suffered as a result of logging
restrictions and dismissing the Crown’s
application for leave to appeal the award of
compound interest. Cross-appeal by the
respondent from the dismissal of its claim
for compensation prior to 1993. The
respondent purchased a logging licence in
1993 permitting it to harvest annually a
stipulated volume of timber from a specified
area. Prior to the purchase, the Crown had
suspended logging in part of the area to
permit consideration of a new provincial
park. In 1995, part of the area was used to
create a new provincial park and logging
became prohibited in the parklands. The
respondent’s allowable annual cut was
reduced in 1999. The arbitrator dismissed
the respondent’s claim for losses suffered
prior to the reduction in its allowable annual
cut and awarded compensation after that
period plus compound interest and costs on
an indemnity basis. On appeal, the judge
awarded the respondent compensation for
the period between 1995 and 1999. The
judge dismissed the respondent’s application for leave to appeal the disallowance for
compensation prior to 1993. The judge also
dismissed the Crown’s application for leave
to appeal the award of compound interest.
HELD: Appeal allowed in part. Cross-appeal dismissed. The judge erred in finding that the respondent was entitled to
compensation before there was any reduction in the respondent’s allowable annual
cut. Section 7 of the Protected Areas Forest Compensation Act, read in conjunction
with s. 60 of the Forest Act, provided a
complete code of compensation. Section
60( 4) of the Forest Act provided only for
compensation commencing on the date of
the reduction in the allowable annual cut.
Pursuant to s. 60( 4), compensation was in
respect of the amount of the reduction
exceeding five per cent. The words “in
respect of” firmly connected the compensation to the reduction in allowable annual
cut, and did not admit compensation arising from anything other than that reduction. The compensation scheme expressly
excluded the broader entitlement to compensation available under the Expropriation Act. As a result, the respondent’s
appeal from the disallowance of compensation prior to 1993 could not succeed.
There was no basis for interfering with the
judge’s dismissal of the Crown’s application for leave to appeal the compound
interest award. There was a recent and
binding Court of Appeal decision on the
issue. In the interests of settled law, the
issue ought not to be revisited.
Teal Cedar Products Ltd. v. British
Columbia (Ministry of Forests), [2012]
B.C.J. No. 275, British Columbia Court of
Appeal, M.E. Saunders, R.E. Levine and
C.E. Hinkson JJ.A., February 13, 2012.
the respondent landlord was not an occupier
of the premises at which her accident
occurred. The plaintiff suffered catastrophic
injuries following a slip and fall on stairs in a
restaurant. She contended that the construction and condition of the stairs caused the
fall. The plaintiff sued the restaurant, its
proprietor, and the landlords. She also
alleged negligence on the part of the City of
Toronto for failing to ensure that the stairs
were constructed in a manner that would
provide for safe use for patrons. The restaurant, the proprietor and the City were found
jointly and severally liable for the plaintiff’s
damages. The trial judge found that the
landlord was not an occupier for the purpose
of the Occupiers’ Liability Act. The judge
found that the landlord had no responsibility for, or control over, the activities that
occurred on the premises, or the persons
allowed on the property. The landlord owed
no duty to the plaintiff under the Act and the
action was dismissed as against it. The plaintiff appealed on the basis that the trial judge
misapprehended the evidence of the tenant
proprietor, as the evidence established that
the landlord had the requisite responsibility
and control for the purposes of the Act. The
plaintiff further submitted that the trial
judge misapprehended the operative lease in
respect of the landlord’s responsibility for
inspection and repairs.
HELD: Appeal dismissed. The trial
judge’s interpretation of the proprietor’s
evidence was reasonably available on the
totality of his evidence. Although the
extracts of evidence cited by the plaintiff
were capable of bearing a different inter-
pretation, they were insufficient to support
a finding that the trial judge misappre-
hended the evidence in a manner that
justified appellate intervention. The trial
judge correctly interpreted the operative
lease as putting complete responsibility on
the tenant proprietor for repair and main-
tenance. The exclusion of “wear and tear”
from the proprietor’s responsibility for
maintenance and repair did not place an
obligation on the landlord to repair and
inspect the property. In addition, the lease
was but one factor in the assessment of the
entirety of the circumstances. The conduct
of the parties over several years was a sig-
nificant consideration in determining
whether the landlord was an occupier. The
trial judge’s view of that conduct did not
support the notion that the landlord had
the necessary responsibility for, or control
over, the premises. There was no basis to
interfere with the trial judge’s findings of
fact in that regard. There was no other
basis upon which negligence could be
imputed to the landlord.
Classifieds
MISSING HEIRS
Cogan & Associates Inc.
International probate research,
locators of missing heirs. Toll Free:
1-888-779-2208. www.heirtrace.com
YONGE/DUNDAS, TORONTO
single or group of unfurnished
offices available for rent March 1,
2012. Features lots of glass,
hardwood, conference rooms,
in-house library. Furnished
secretarial workstations and filing
cabinets. Shared amenities. Contact
Margot Biermann 416-979-6427.
CENTRAL ALBERTA LAW
CIVIL LITIGATION LAWYER
SOUTHERN SHORES OF
GEORGIAN BAY
Owen Sound law firm has an
excellent opportunity for an
associate with a minimum of 3
years’ experience in the areas of
Corporate, Commercial and
Municipal law. Escape the big city
and enjoy the beauty of the
Niagara Escarpment, Georgian
Bay and the Bruce Peninsula.
Please forward resumes in
confidence to the attention of John
Kirby at Kirby, Robinson, Treslan,
jkirby@owensoundlawyers.com
1235 BAY STREET
Executive office in Yorkville
with boardroom, secretarial
station & shared reception. Direct
subway access. Call 416-925-1601,
ext. 226.
TO PLACE YOUR
TORT LAW
Please Contact
Haadia Ashique
905-415-5804
1-800-668-6481 ex. 804
haadia.ashique@lexisnexis.ca
CLASSIFIED AD
LAWYER FOR LAW FIRM IN
VAUGHAN
From call to bar to up to 2 yrs
related personal injury experience
with excellent organizational,
advocacy, analytical and research
skills with superior work ethic and
ability to work independently and
as part of a team. Please respond
in confidence to Barry Edson by
fax 905-856-3703 or email
bedson@edsonlegal.com with
curriculum vitae and law school
and bar admission transcripts.
OCCUPIERS’ LIABILITY – Defin-
itions – Occupier – Statutory – Danger-
ous premises – Landlord and tenant –
Particular situations – Stairs.
Appeal by the plaintiff from a ruling that
PERSONAL INJURY LAW FIRM
seeking an Associate Lawyer. 1-2
years exp. in personal injury
required. Apply in confidence to
info@pateylaw.com
WE ARE AN ESTABLISHED 2
PARTNER/ 6 LAWYER
GENERAL FIRM
at Avenue Road and Davenport
looking for a lawyer of
approximately 7 + years
experience who has his/her own
practice ($100,000.00+ billings) to
join us as an associate. We are
open, friendly and good
communicators. We believe we
have the right structure for you to
shape your own practice and help
to formulate the future of our law
firm, including partnership
opportunities, essential support,
flexible remuneration arrangements,
and family law referrals. Please send
your resume in confidence to Gary
Farb at garyfarb@cfflaw.com or
send your resume to him by fax to
416-324-4223.
