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SNC-Lavalin revives court bid for special agreement to avoid criminal trial

SNC-Lavalin revives court bid for special agreement to avoid criminal trial


SNC-Lavalin, the company at the centre of a national political storm, underscores what it calls new and troubling facts in a fresh court bid for a special agreement to avoid prosecution on corruption charges.

The Montreal-based engineering and construction firm cites revelations from recent parliamentary-committee testimony in trying to revive its Federal Court case against the director of public prosecutions.

SNC-Lavalin is asking the Federal Court of Appeal to give it another chance to challenge the director’s decision to not negotiate an agreement that would see the company avoid a criminal trial and a possible prohibition from receiving federal contracts for 10 years.

In a March ruling, the Federal Court tossed out the company’s plea for a judicial review of the 2018 decision.

SNC-Lavalin faces prosecution over allegations it paid millions of dollars in bribes to obtain government business in Libya.

The company unsuccessfully pressed the director of prosecutions to negotiate a “remediation agreement,” a means of holding an organization to account without formal criminal proceedings.



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Insurer can challenge claim over stolen diamond-studded eagle, court rules

Insurer can challenge claim over stolen diamond-studded eagle, court rules


The legal battle between owner and insurer over a missing diamond-studded statue continues its long, protracted journey. 

In December, a B.C. Supreme Court registrar ordered Lloyd’s Underwriters to honour a claim from Ron Shore’s company — Forgotten Treasures International — for the golden eagle statue which was allegedly stolen along with a silver decoy in May 2016.

On Wednesday, a B.C. Supreme Court judgment overturned that decision, allowing the insurer to challenge Shore’s claim.

The golden eagle, which weighed eight kilograms and was encrusted with 763 diamonds, was supposed to be part of an international treasure hunt to raise money for cancer research.

Shore told reporters the bird was worth $5 million, but the initial notice of civil claim said the bird’s value was $930,450.

On May 29, 2016, after an event in Delta, B.C., the eagle and a smaller silver one were stolen from Shore as he was putting them back into his car. 

Ron Shore pauses while speaking about the theft of the golden eagle in 2016. (Darryl Dyck/Canadian Press)

The eagles have never been found.

The insurer says one of the terms of its policy was that the eagles had to be accompanied by a designated employee or representative of Shore’s at all times other than when deposited in a bank safe or vault. It claims that at the time of the mugging, Shore was alone and therefore breached the policy.

Thus began a legal battle, with Shore’s company filing a notice of civil claim against the insurers. Eventually, after missed deadlines and procedural delays, Shore was granted a default judgment in December against the insurer.

Justice Robin Baird overturned that ruling on Wednesday.

Baird said the insurers hadn’t willfully and deliberately failed to respond to Shore’s civil claim. He said it appeared the correspondence between the two parties showed the insurers would be mounting a solid defence.

He has given the insurers 21 days to file a response to Shore’s civil claim.



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Ontario can't block B.C.-based eyeglass company from selling there, Appeal Court rules

Ontario can’t block B.C.-based eyeglass company from selling there, Appeal Court rules


Ontario regulators have no right to block a company legally operating elsewhere in Canada from selling prescription eyewear to online customers in the province, an Appeal Court ruled on Thursday.

The decision means Ontario consumers can continue to order corrective glasses and contact lenses from British Columbia-based online retailer Essilor, which sells Coastal and Clearly products.

“The mere delivery in Ontario of an order for prescription eyewear that has been processed in compliance with the British Columbia regulatory regime, without more, does not establish a sufficient connection between Essilor’s online sales and the controlled acts proscribed by (Ontario’s laws),” the Appeal Court ruled.

“Where the supplier of the prescription eyewear operates in another province and complies with that province’s health-professions regulatory regime when filling an online order placed by an Ontario customer, the final act of delivering that product to the Ontario purchaser does not amount to the performance of a ‘controlled act’ by the supplier.”

The case arose in December 2016 when regulators in Ontario — the colleges of Optometrists and Opticians — alleged Essilor was acting illegally by accepting orders for prescription eyewear through its websites and shipping the products to patients in Ontario. It wanted the courts to end the practice.

In essence, the colleges argued only licensed professionals in Ontario could dispense prescription eyewear in the province. The colleges offered no evidence anyone was actually harmed by Essilor’s practices.

In January 2018, Superior Court Justice Thomas Lederer sided with the colleges. He ruled the company was dispensing corrective eyewear in Ontario and concluded the province’s rules should apply. Lederer ordered Essilor to stop the sales.

Essilor Group Canada, whose head office is in Quebec but runs its online operation out of B.C., appealed, also winning permission to continue its sales pending the outcome of the case. It argued that fulfilling Ontario orders did not amount to the controlled act of dispensing prescription eyewear.

The subsidiary of France-based international eyewear giant, Essilor International, also argued Lederer wrongly decided that Ontario’s regulations applied to its online sales.

According to court filings, the Canadian prescription eyewear market is estimated to be worth more than $4.5 billion a year. The Appeal Court noted that eyewear is part of a trend toward online retail sales.

“The explosion in the volume and variety of online consumer transactions over the past decade has included the emergence of an online market for the purchase and sale of prescription eye glasses and contact lenses,” the court said. “In some jurisdictions, friction has emerged between the online vendors of such products and the professional health-care bodies that historically have regulated the sale.”

In siding with Essilor, the appellate court found the company was acting lawfully in its home province, which has a similar regulatory framework to Ontario. Nor was it “dispensing” eyewear in Canada’s most populous province by fulfilling orders in B.C. and shipping them across the country.

Leaning on Quebec case law, the court also noted that providing prescription eyewear is a transaction with both health care and commercial aspects.

Barring the online sales would amount to using Ontario’s Regulated Health Professions Act to give the province’s optometrists and opticians a monopoly over the commercial importation of prescription eyewear.

That could only happen if the legislature passed a law to clearly allow such a monopoly — something current regulations do not do, the court said.



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Telus scores win at Supreme Court over customer rights to join class action suits

Telus scores win at Supreme Court over customer rights to join class action suits


Telus has scored a victory at the Supreme Court of Canada, which says its business customers are contractually prevented from joining class action suits filed on behalf of individual consumers.

A majority of judges in the 4-3 decision ruled an Ontario judge erred in allowing Avraham Wellman to be included in a class action case against Telus even though he was a business customer of its mobile phone service.

Telus had argued Ontario’s consumer protection law didn’t apply to business customers like Wellman and he had to abide by his contract’s provisions for deciding disputes outside of the court system, through arbitration.

Four judges at Canada’s top court agreed with Telus, but three others dissented.

The ruling affirms that Ontario’s Consumer Protection Act overrides the arbitration provisions of Telus service contracts, but the Arbitration Act doesn’t give the same opportunity for business customers

The case went to Canada’s top court after Telus appealed an Ontario judge’s ruling that said both individual consumer and business customers could be included in the class action case because it was unreasonable to separate the two groups.



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Manitoba will challenge federal carbon tax in court, has 'credible greenhouse gas-reduction plan': premier

Manitoba will challenge federal carbon tax in court, has ‘credible greenhouse gas-reduction plan’: premier


The Manitoba government will go to court over Ottawa’s imposition of a carbon tax.

Premier Brian Pallister revealed Wednesday his government will launch a legal challenge against the federal government, which imposed its new levy as promised on Manitoba, along with three other provinces, Monday.

“We’re going to court, sadly, to challenge the Ottawa carbon tax because Ottawa cannot impose a carbon tax on a province that has a credible greenhouse gas-reduction plan of its own, and we do,” he told reporters.

Manitoba’s climate change plan originally included a carbon tax, which Pallister withdrew in a surprise move last October.

The federal government’s carbon tax came into effect April 1 for four provinces — Saskatchewan, Manitoba, Ontario and New Brunswick — that didn’t meet Ottawa’s standard for a sufficient carbon pricing system.

The carbon tax is now charged on 21 different fuel inputs in those provinces, including gasoline, at a rate of $20 per tonne of carbon emissions. That will gradually rise to $50 per tonne by 2022.

Pallister said Wednesday his government has a strong legal case against the federal tax, separate from a court challenge already launched by Saskatchewan, and backed by Ontario and New Brunswick, because it originally proposed its own tax.

Manitoba backed away from that plan, which proposed a flat carbon price of $25 per tonne, when the federal Liberal government declared it didn’t go far enough.

The premier also said it wasn’t fair that the federal government had offered exceptions to other provinces, but not Manitoba.

He’s previously said Quebec’s cap-and-trade program is much less stringent than the flat $25-per-tonne price he proposed before he withdrew the Manitoba carbon tax, and has argued Manitoba isn’t given credit for the clean energy it produces.

“I’m the only Conservative premier in the country that took steps to develop a green plan, which actually involves our people here contributing somewhat to a levy.”

The federal Liberal government will begin levying its carbon tax on greenhouse gas-emitting fuels today in the four provinces that have refused to take part in the pan-Canadian climate framework. 4:35

Pallister said his decision was influenced by discussions with government lawyers, and that Manitoba’s legal argument is more convincing now that the federal backstop is in place.

“There’s no point launching the case unless they were going to intrude on Manitoba’s jurisdiction,” he said of the federal government. “They didn’t do that until this past Monday.”

Manitoba will withdraw the court challenge, which may take two to three years to wind through the legal channels, Pallister said, if the Saskatchewan court challenge succeeds, or if the Trudeau government is defeated in the next federal election. 

“My hope would be it’s resolved by previous court decisions and we don’t need to carry it further,” Pallister said. “I guess I could be accused of trying to save money, yet again.”

If Ottawa’s plan is rejected, Pallister wouldn’t say whether he would implement the carbon tax plan his government originally proposed.

Manitoba has ‘flip-flopped’: environment minister

Federal Environment Minister Catherine McKenna is dismayed by Pallister’s thinking.

“I think it’s really ironic,” she said from Ottawa.

“The day after we release a climate report for Canada by our scientists that said that Canada’s warming is double the world average that we have the premier of Manitoba deciding to take us to court, to spend taxpayer money fighting climate action as opposed to fighting climate change,” McKenna said.

Minister of Environment and Climate Change Catherine McKenna condemned the Manitoba government for choosing to fight Ottawa in court over the carbon tax, just one day after a report found that Ottawa was warming at twice the world’s average. (Sean Kilpatrick/Canadian Press)

“Manitoba had an opportunity to have a plan and, unfortunately, they flip-flopped so many times.”

Manitoba NDP Leader Wab Kinew pointed out the province received a legal opinion two years ago that said the federal government has the right to impose a carbon tax.

He said this lawsuit, which he described as “frivolous,” won’t change that. 

“We can debate the merits of the carbon pricing measure, but I can tell you one thing for sure: taking the federal government to court on this is just going to waste taxpayer money and it’s going to do absolutely nothing to fight climate change here.” 

The legal opinion said the province could legally snub the federal carbon tax scheme if it demonstrated that its plan was equally effective at cutting emissions. 

The government would be better off returning to the negotiating table with the federal government, argued Manitoba Liberal Leader Dougald Lamont.

“To go against the advice of a very well-respected law prof who you’ve paid tens of thousands of dollars to give you advice on this matter doesn’t make any sense to me.”



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