18 | LEXPERT • December 2017 | www.lexpert.ca/usguide-litigation/
that the company's rights under its enabling legislation, the
federal CTC Act, immunized it and its federal undertaking from
the city's bylaws.
Federal Court Justice Michel Shore disagreed. e Federal
Court, he noted, was a statutory court whose powers were
circumscribed by the Federal Courts Act. He could find nothing
in the statute that bestowed jurisdiction in these circumstances.
Accordingly, the Ontario Superior Court of Justice's inherent
jurisdiction made it the proper forum for determining whether
CTC was subject to the city's orders.
CTC appealed to the Federal Court of Appeal and won. A
unanimous Bench ruled that s. 23(c) of the Federal Courts Act,
which grants the Federal Court jurisdiction concurrent with
provincial superior courts when a remedy is sought "under an act
of Parliament or otherwise" in relation to "works and undertak-
ings connecting a province with any other province or extending
beyond the limits of a province."
But on further appeal, the SCC restored Justice Shore's
decision. e majority saw the Federal Court's role restrictively,
emphasizing that a statutory court without inherent jurisdic-
tion must "not overstep this limited role." In the majority's view,
s. 23(c) of the Federal Courts Act did not apply because CTC's
claim was not brought under federal law.
Contrarily, the minority urged a broad construction of the
Federal Court's jurisdiction, citing Parliament's intention in
creating the court and particularly its role as a national trial court.
"e dissenters took a more contextual approach in the sense
that they saw the court as giving the public recourse to a court of
national jurisdiction," Leon says.
Christopher Williams, a litigation partner at Aird & Berlis
LLP in Toronto, who represented the City of Windsor, said the
decision is of broad significance because it applies to a host of
federal undertakings in municipalities, including railways and
communications towers.
"What the case means is that parties dealing with the appli-
cation of municipal bylaws to their activities must bring their
disputes about the constitutional power of the municipality
to affect them in the provincial courts," he says. "In particular,
it allows municipalities seeking to enforce their bylaws against
federal undertakings to seek relief in local courts." — J.M.
documents," says Sandra Forbes, a partner in Davies Ward
Phillips & Vineberg LLP's Toronto office.
Indeed, commentators suggest that Trump v. Singh, 2017
ONCA 34, marks a change in the OCA's approach to the
doctrine of unconscionability and puts some limitations on the
"buyer beware" principles that have dominated the jurisprudence.
Mitchell Wine of Levine Sherkin Boussidan Professional
Corporation in Toronto, who represented Lee and Singh, says
the OCA ruling helps unsophisticated investors going forward.
"Had the Court of Appeal upheld Perell's ruling, the door would
have been open for developers to rely on unfounded projections,"
he says.
Wine also says that the decision will support the claims of
two dozen other investors who are looking to have their deposits
returned. — J.M.
10.
Windsor v. Canadian Transit
Lawyers in the US and their clients understand the implications
of a bifurcated court system that distinguishes federal courts
from state courts. Jurisdictional and other complexities abound,
so confronting a Canadian system that also shares jurisdiction
between the Federal Court of Canada and provincial superior
courts ought not to present conceptual difficulties for Americans
doing business in Canada.
But the systems only look similar at first blush. "e federal
courts in the US have a fairly broad and diverse jurisdiction,
which is designed to avoid the home court advantage that could
arise from suing in a particular state court," says Jeffrey Leon, a
litigation partner in the Toronto office of Bennett Jones LLP.
"But that's not necessarily the case in Canada."
Indeed, it's frequently a fine line in Canada that separates the
jurisdiction of the federal and provincial courts. A recent case in
point is Windsor v. Canadian Transit, 2016 SCC 54, a decision
of the Supreme Court of Canada (SCC) that evidences, through
its 5-4 split, just how fine that line can be. "e case demonstrates
the importance of US lawyers getting advice on the distinctions
between our constitutional division of powers and court systems,
and those that exist in the US," Leon says.
e Canadian Transit Co. (CTC) was a federally incorporated
body that owns the Canadian half of the Ambassador Bridge
connecting Windsor and Detroit. e CTC owned more than
100 unoccupied residential properties near the bridge. Because
the company intended to use the land on which the properties
were located in conjunction with its ownership and maintenance
of the bridge, it boarded up the houses.
e houses did not measure up to the City of Windsor's
property standards. e city issued repair orders. CTC refused
to comply and took the position that the dispute was properly
adjudicated in the Federal Court of Canada because the Ambas-
sador Bridge, from a constitutional perspective, was a "federal
undertaking." CTC sought a declaration from the Federal Court
CROSS-BORDER SIGNIFICANCE
Christopher
Williams
Aird & Berlis LLP
"[Windsor v. Canadian
Transit means] that
parties dealing with the
application of municipal
bylaws to their activities
must bring their disputes
about the constitutional
power of the municipality
to affect them in the
provincial courts."
