Manitoba Telecom Services – Silence Through Predictability

Pensions are often the lifeline for the millions of pension holders once they retire. Pension plans also fluctuate in value if parts of the funds are invested in securities. In such cases, actuarial surpluses occur when a fund’s assets are greater than the actuarial estimate of the pension plan’s liabilities, and sometimes it is not clear what to do with such surpluses. But, the Supreme Court of Canada (SCC) does not often examine the law of actuarial surpluses because each actuarial surplus depends on the governing legislation and a plan’s unique circumstances (Nolan v Kerry). So, it would seem that the SCCs recent decision in Telecommunications Employees Association of Manitoba Inc v Manitoba Telecom Services Inc is relevant for only a small segment of the Canadian public. However, the decision is significant for Canada as a whole because it offers valuable insight into the SCC’s thought process, something that is especially valuable given the telecommunication competition situation. The problem, though, is that this predictability may in fact be harmful to Canada.

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[filed: Uncategorized]

Appeal Watch: Bhasin v Hrynew Submissions Before the SCC

On February 12, 2014, the Supreme Court of Canada heard an appeal from the Alberta Court of Appeal’s decision in Bhasin v Hrynew, 2013 ABCA 98. My previous analysis of the ruling can be found here on The Court.

Lawyers for the plaintiff and the defendants made their oral submissions before Chief Justice McLachlin, along with Justices LeBel, Abella, Rothstein, Cromwell, Karakatsanis, and Wagner. A video webcast of the Supreme Court’s back-and-forth session with counsel can be found here.

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[filed: Administrative Law Appeal Watch Civil Procedure Contracts Labour and Employment Oral Arguments]

Access to Justice Avenue Towards Class Action Certification Widened in Cavanaugh v Grenville Christian College

On 24 February 2014, the Ontario Divisional Court allowed the certification of a class action on the basis that the need to ensure that the plaintiffs received access to justice outweighed the difficulties that their many individual issues could produce for a trial: Cavanaugh v Grenville Christian College, 2014 ONSC 290 [Cavanaugh].

This case is the latest in a body of jurisprudence that is bringing clarity to the proper balancing of considerations that courts should make under the preferability analysis for class action certification—the analysis for whether a case should proceed as a class action or as a series of individual actions.

[filed: Uncategorized]

A Costly Class Action: the Failed Nuisance Claim in Smith v Inco Ltd

The final act in an eleven year long class proceeding has concluded with Smith v Inco Ltd, 2013 ONCA 724.  The defendant Inco had successfully defended itself against the claim for damages in the class action.  Here, it sought to recover legal costs of over $5 million. Inco was awarded a still substantial, though smaller award of $1.76 million.

On this appeal, the main respondent was the Law Foundation of Ontario, an agency jointly sponsored by the Ontario Government and the Law Society.  One of its functions is to support deserving class actions by paying for disbursements, and the cost award in the event that the class loses.   Under Ontario law, the individual named plaintiff would be liable for millions of dollars in costs unless somebody else steps forward to pick up the bill.   The Court of Appeal affirmed the costs award of the trial judge, and one of the factors considered was the precarious financial condition of the Law Foundation.  Read the rest of this entry »

[filed: Civil Procedure Class proceedings Torts]

The USSC Revisits the Fraud-on-the-Market Principle in Halliburton Co v. Erica P John Fund

Last Wednesday, the United States Supreme Court heard oral arguments for Halliburton Co. v. Erica P. John Fund, thereby revisiting the contentious “fraud-on-the-market” principle adopted in the 1988 case of Basic Inc. v. Levinson, 485 US 224 (1988). The principle works as follows: open and developed securities markets are efficient and all relevant information about a particular security is reflected in its price; investors buy these securities relying on the integrity of this price; material misstatements made by the issuer distort this price; and therefore, investors can be deemed to have relied on the misstatement because they relied on the price. Undoubtedly, this is something of a legal fiction, as markets do not always incorporate relevant information in real time and investors buy securities for any number of reasons—often precisely because they believe the market is not accurately valuing a security. However, fraud-on-the-market is an indispensable construct in certifying securities fraud classes in the United States and there are significant consequences to overruling it. Read the rest of this entry »

[filed: Civil Procedure Class proceedings Securities Law U.S. Supreme Court Uncategorized]

Canada (Commissioner of Competition) v Chatr Wireless Inc.: True Claims, but Inadequate Testing

On February 21, 2014, the Ontario Superior Court of Justice released its decision regarding remedies in Canada (Commissioner of Competition) v Chatr Wireless Inc., 2014 ONSC 1146 [Chatr]. This case stemmed from allegations by the Commissioner of Competition against Chatr Wireless Inc. (“Chatr Wireless”) in relation to claims made by the telecommunications company about it having fewer dropped calls than its competitors.

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[filed: Competition Law Consumer Protection]

Supreme Court Sets High Bar for Prosecutorial Abuse of Process in R v Babos

In R v Babos, 2014 SCC 16 [Babos], the issue was whether the Crown misconduct, in the form of intimidation and threats, was severe enough to warrant a stay of proceedings for the accused. A 6-1 majority of the Supreme Court of Canada (SCC) has held that prosecutorial misconduct or abuse of process must be particularly egregious to warrant a stay of proceedings when the criminal charges are serious. In this case, a prosecutor repeatedly threatening to have extra charges brought if the accused did not plead guilty to the charges as laid was not enough to meet the high threshold for abuse of process warranting a stay of proceedings, as it was not found to outweigh society’s interest in a trial. Read the rest of this entry »

[filed: Criminal Code Criminal Law Criminal Procedure]

Expert Evidence of Police Officers and the Curative Proviso in R v Sekhon

Ajitpal Singh Sekhon attempted to drive a pickup truck across the border from Washington State into British Columbia on January 25, 2005. He was flagged for secondary inspection by Canadian customs officials, which led to the discovery of 50 one-kilogram bricks of cocaine – valued over $1.5 million – hidden inside a secret compartment in the pickup truck. After Mr. Sekhon was detained and advised of his rights, he produced a key fob from his pocket. The police later found out that when the key fob’s buttons were pressed in a particular sequence, it opened and closed the hidden compartment.

Mr. Sekhon claimed that he did not know there was cocaine in the vehicle – he had merely agreed to drive his friend’s truck back to British Columbia. Thus, he argued, he lacked the requisite knowledge to be found guilty of importing cocaine and possessing cocaine for the purpose of trafficking. Read the rest of this entry »

[filed: Criminal Law Evidence Law R. v. Mohan]

The Federal Court of Canada Orders Teksavvy to Release Customer Identities to Film Production Company

On 20 February 2014, the Federal Court of Canada (FCC) ordered (2014 FC 161) that Teksavvy Solutions Inc. (Teksavvy), an Internet Service Provider, must release the names and addresses of 2,000 customers who allegedly downloaded copyrighted films. Voltage Pictures LLC (Voltage), a film production company that produced the Oscar-winning film The Hurt Locker, sought this order on a motion to the FCC. Arguing that the customers who are alleged to have downloaded the films are prima facie liable under the Copyright Act for infringement, Voltage made this motion to the FCC with the intention of pursuing claims against these customers once the information is released.

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[filed: Uncategorized]

Is the Right to Strike Protected by the Charter? A Review of R v Saskatchewan Federation of Labour

Since 2001 there has been considerable turmoil at the Supreme Court of Canada (“SCC”) surrounding collective bargaining rights under the Charter. During this period, two significant decisions have appeared to shift the Court towards recognizing a constitutional right to collective bargaining. As a result, a trial judge in Saskatchewan took the audacious step of assuming that the SCC would no longer abide by its earlier position that the Charter does not protect the right to strike. The Court of Appeal overruled him in R v Saskatchewan Federation of Labour, 2013 SKCA 43 [Saskatchewan Federation], taking a principled stand that the lower court ruling violated the doctrine of stare decisis.

The SCC has given leave to appeal in Saskatchewan Federation, and its decision may push the boundaries of collective bargaining rights even further. Conversely, the Court may vacillate and add to the confusion that has been created by its latest decisions in this area. Regardless of the outcome of the appeal, Saskatchewan Federation is an excellent piece of judicial writing and worth reading for its own sake. Read the rest of this entry »

[filed: Charter Labour and Employment]