Thursday, October 22, 2009

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

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.