Category: Remedies Page 3 of 5

Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

On June 5, 2014

By: Nigel Bankes

PDF Version:Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

Case commented on: Nunavut Tunngavik Incorporated v Canada (Attorney General), 2014 NUCA 02

The Nunavut Court of Appeal has confirmed the availability of a disgorgement remedy as a possible means of assessing damages for breach of a modern land claim agreement. However, the majority of the Court (Justices Slatter and O’Brien) ruled that summary judgment was not available to the Nunavut Tunngavik Inc (NTI) in this case and that consequently damages must still be assessed following the trial. Justice Hunt (dissenting on this point) concluded that summary judgment was available. All members of the Court were agreed that nominal damages would not be appropriate in this sort of case even if NTI were unable to prove actual damages. To allow an award of nominal damages for breach of a land claim agreement would not foster the overall goal of reconciliation.

A Stay in the Khadr Litigation

By Maureen Duffy

On July 30, 2010

In Constitutional, Remedies

Case Considered: Canada (Prime Minister) v. Khadr, 2010 FCA 199

The litigation saga of Omar Khadr continues. On July 22, 2010, the Federal Court of Appeal granted a stay pending appeal of the most recent order of the Federal Court after hearing the appeal by teleconference on July 16, 2010. (See Canada (Prime Minister) v. Khadr, 2010 FCA 199). For background on Khadr’s case, including a discussion of the Federal Court order at issue in the appeal, see my earlier ABlawg post, Maureen Duffy, The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr; see also Linda McKay-Panos, My Vote for R. v. Hape as a Significant Legal Case of the Decade.

The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr

By Maureen Duffy

On July 22, 2010

In Constitutional, Remedies, Supreme Court of Canada

PDF version: The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr

Case considered: Khadr v. Canada (Prime Minister), 2010 FC 715.

Omar Khadr, perhaps the most controversial of the detainees at the U.S. naval base at Guantanamo Bay, Cuba, has won another round, in the Federal Court of Canada, in his ongoing quest to pressure the Government to seek to repatriate him to Canada. The Honourable Mr. Justice Zinn cited the “unique circumstances of this case” and entered a strongly worded judgment, finding that Khadr was entitled to “procedural fairness and natural justice” by the executive in the response to the most recent Supreme Court of Canada ruling in the case – Canada (Prime Minister) v. Khadr, 2010 SCC 3 [Khadr II].

Justice Zinn, finding the Government’s response to date to be lacking, laid out a number of specific mandates for the Government. He ordered the Government to advise Khadr and his attorneys, within seven days, of all “untried” remedies, which had the potential to cure or at least lessen the prior breach of Khadr’s Charter rights. He granted Khadr time to respond with his own list of potential remedies, and even went so far as to retain jurisdiction to resolve disputes and to impose his own remedies if the Government failed to do so in a reasonable time. Not surprisingly, the Government appealed Justice Zinn’s ruling, setting the stage for a possible third round of higher court rulings in this case.

Court of Appeal Rejects the Constructive Trust Analysis in Brookfield

By Nigel Bankes

On June 25, 2009

In Oil & Gas, Remedies

Case considered: Brookfield Bridge Lending Fund Inc. v. Vanquish Oil and Gas Corporation, 2009 ABCA 99, reversing 2008 ABQB 444

PDF version: Court of Appeal rejects the constructive trust analysis in Brookfield

The Court of Appeal by a 2:1 majority (Justices Frans Slatter and Patricia Rowbotham for the majority, Justice Ronald Berger dissenting) has overruled the decision at trial by Justice Bruce McDonald to impose a constructive trust on the assets of an operator beyond the express trust provided for by clause 507 of the CAPL Agreement.

“Litigation by installments”: Further Developments in the Black Bear Crossing Dispute

By Jennifer Koshan

On January 26, 2009

In Aboriginal, Constitutional, Remedies

Cases Considered: Tsuu T’ina Nation v. Frasier, 2009 ABCA 23.

PDF Version: “Litigation by installments”: Further Developments in the Black Bear Crossing Dispute

As noted in a previous post, a February 2008 decision of the Alberta Court of Appeal effectively prevented the Tsuu T’ina Nation from enforcing an eviction notice against residents of Black Bear Crossing whose band membership was disputed until such time as the membership of the residents was resolved (see 2008 ABCA 74). The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied on October 30, 2008 (see 2008 CanLII 55966). Meanwhile, the parties were before the Alberta courts again when the Tsuu T’ina Nation cut off the water and utilities for the three remaining residents of Black Bear Crossing (BBC). The Tsuu T’ina Nation was held in civil contempt by Justice Jo’Anne Strekaf of the Court of Queen’s Bench for refusing to supply the residents with these services after being ordered to do so. Those orders had been made as conditions of an adjournment granted to the Tsuu T’ina in respect of its underlying action pursuing eviction of all remaining residents of BBC on October 20, 2008. The Court of Appeal had left such an action open to the Tsuu T’ina if it did not discriminate between member and non-member residents. On January 15, 2009, Justice Patricia Rowbotham of the Alberta Court of Appeal granted the Tsuu T’ina leave to appeal Justice Strekaf’s October 20, 2008 order (2009 ABCA 23). In a strange twist, however, the previous day Justice Strekaf granted the Tsuu T’ina an eviction order in respect of the one remaining resident of BBC, the other two having moved out after accepting the Nation’s offer of a year’s accommodation off-reserve (see here).