Supreme Court of Canada is scheduled to hear the A.G. v. Telezone case on January 20, 2010

Hello Everyone:

You will see from the attached Supreme of Canada Docket that the Attorney General v. Telezone case is scheduled for hearing at the Supreme Court of Canada on January 20, 2010.

As you will recall we rely on the Ontario Court of Appeal decision in Telezone case to support our position that it is not necessary to apply in Federal Court for judicial review before seeking damages from the federal Crown. The appeal of this decision to the Supreme of Canada involves a review of the ambit of the Grenier decision relied upon by the Attorney General in our case. As you know from the last update, Judge Griffen has held off on providing her judgment in our case in the BC Supreme Court proceeding until the Supreme Court Canada rules on Telezone.

You may be able to watch the Telezone hearing on CPAC or via Webcast … I will keep you posted.

I would be interested in how Mr. Robert Hache’s case are proceeding on the East Coast – I suspect they are in a similar position.

Regards, Meldon Ellis

http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=33041

Summary of Telezone case Provided by Registrar of the Supreme Court of Canada and posted on the Supreme Court of Canada website:
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Crown law - Crown liability - Administrative law - Judicial review - Courts - Jurisdiction - Plaintiff commencing action against federal Crown in the Ontario Superior Court of Justice for damages for breach of contract or negligence - Whether Ontario court had jurisdiction to hear claim - Whether plaintiffs seeking damages from federal Crown in relation to an administrative decision must first apply for judicial review in Federal Court of Canada - Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.

The plaintiff commenced a proceeding against the federal Crown in the Ontario Superior Court of Justice. The claim was, generally, for damages for breach of contract or negligence. It arose from a decision of the Ministry of Industry rejecting the plaintiff’s application for a licence, but did not seek to impugn the decision. Rather, the plaintiff alleged, notably, that the licensing criteria had not been applied fairly and in good faith.

The Attorney General of Canada brought a motion pursuant to rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action for lack of jurisdiction. Relying on Grenier v. Canada (Attorney General) 2005, 262 D.L.R. (4th) 337 (F.C.A.), and s. 18 of the Federal Courts Act (“FCA”), the Attorney General asserted that since an essential element of the claim involved an attack on a decision of a “federal board, commission or tribunal” within the meaning of the FCA, jurisdiction lay in the Federal Court.

The motion was dismissed on the ground that the Attorney General had not established that it was plain and obvious that the Ontario court did not have jurisdiction. The Court of Appeal dismissed the appeal, holding that the claim clearly fell within the jurisdiction of the Superior Court, since it did not seek the type of relief outlined in s. 18 of the FCA. Also, it did not constitute a collateral attack of an administrative decision, since it did not seek the impugn the underlying decision to reject the application for a license.

February 13, 2009 - Meldon Ellis appeared before Madame Justice Griffen

Meldon Ellis appeared before Madame Justice Griffen to argue against the defendant’s motions to stay or dismiss the plaintiff’s damages claims on the basis that the British Columbia Supreme Court lacks the jurisdiction to deal with damages claims without the plaintiff first pursuing a judicial review application in the Federal Court of Canada.

The requirement of a two-stage process for suing the Federal Crown is based on a 2005 ruling by the Federal Court of Appeal in Greiner v. Her Majesty the Queen.

A recent ruling on December 24, 2008 by the Ontario Court of Appeal in the case of Telezone v. Her Majesty the Queen called into question the principle in Grenier and allowed the Ontario Supreme Court to maintain jurisdiction over a number of claims against the federal government without requiring the plaintiffs to first go to Federal Court to obtain a judicial review determination.

Meldon Ellis argued that the Telezone case should be followed by British Columbia Supreme Court in these proceedings. Madame Justice Griffen reserved judgment until a later date to be announced.

May 20, 2008, Case Management Conference

On Tuesday, May 20, 2008, we appeared before Madame Justice Griffen, our assigned case management judge to discuss the next steps in the class action law suit.

After listening to our summary of the case, which the other lawyers both agreed with, Madame Justice Griffen directed the following:

(1) that the defendant’s motions to strike our pleadings pursuant to Rule 19(24) be set down for a 2-day hearing (it has now been scheduled for September 4th and 5th, 2008);

(2) that the defendants be required to deliver a full written legal argument well ahead of the hearing; and that plaintiff will have an opportunity to respond with its full written legal argument; and,

(3) that the plaintiff be entitled to bring its application to add or substitute the representative plaintiff at the same time the defendant’s motions are heard.

If the plaintiff succeeds in these motions the next step will be the plaintiff’s certification motion.

Fishing for Freedom

January 2008
Meldon Ellis speaks at Fishing for Freedom public meeting re: Halibut Class Action Lawsuit, January 27th, Richmond Inn, Vancouver, BC and January 28th, Dorchester Hotel, Nanaimo. BC.

The Vancouver Sun Article - December 7th, 2007

Halibut fishermen sue DFO over alleged misuse of quota
Kris Schumacher, Prince Rupert Daily News
Published: Friday, December 07, 2007

Read the article online at the Vancouver Sun here.

DFO named in fishermen lawsuit.

DFO named in fisherman lawsuit. Read the Press Release here.

Ellis Business Lawyers files Class Action lawsuit

Ellis Business Lawyers files Class Action lawsuit against the Federal Department of Fisheries and the Pacific Halibut Management Association. Read the Statement of Claims here.