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Administrative Law

FREEDOM OF INFORMATION

Discretion not exercised in reasonable manner

This was application pursuant to s. 41 of Access to Information Act (Can.), to review decision of Library and Archives Canada (LAC). Applicant was journalist and he sought information on Canadian politician. LAC refused to disclose portions of R.C.M.P.’s dossier on politician based on s. 15 of Act, national security exemption. Applicant made formal complaint to Information Commissioner but commissioner found that applicant’s complaint was not justified. Application granted. There was two-step approach to analysis and review of claimed exemptions under s. 15 of Act. Court reviewing refusals of disclosure under discretionary exemptions were to review: whether documents fell within exemption claimed; and whether discretion was exercised properly. Reasonable expectation of probable harm was to be shown. Injury-based determination that must be undertaken by court must balance aims of Act and objectives, namely, that exemptions were to be interpreted restrictively. Information that was withheld from applicant was done in manner that ran counter to principles of Act and LAC’s mandate. LAC failed to exercise residual discretion once documents had been seen to be covered by s. 15 exemption. On balance of probabilities, court was not satisfied that discretion was exercised and if discretion was exercised it was not exercised in reasonable manner. Matter was set to LAC for re-determination.

Bronskill v. Canada (Minister of Canadian Heritage) (Aug. 11, 2011, F.C., Noel J., File No. T-1680-09) 205 A.C.W.S. (3d) 612 (108 pp.).

Appeal

FRESH EVIDENCE

No credible explanation for reason for witness’ recantation two years after the fact

Accused convicted of robbery. Crown’s case resting on evidence of two unsavoury witnesses identifying accused. Two years after trial, Crown witness providing sworn affidavit recanting his trial testimony implicating accused. Application to adduce recantation as fresh evidence dismissed and appeal dismissed. While admissibility and due diligence criteria met, recantation was incredible and unworthy of belief. No credible explanation for reason for witness’ recantation two years after the fact. Affidavit contained false statements and witness’ attitude to veracity of its contents ambivalent. Recantation could not reasonably be expected to affect assessment of witness’ trial testimony implicating accused in robbery.

R. v. Snyder (June 10, 2011, Ont. C.A., Doherty, Feldman and Epstein JJ.A., File No. C48284) 96 W.C.B. (2d) 121 (28 pp.).

Arbitration

JURISDICTION

Policy on discrimination and harassment did not limit or amend terms of collective agreement

Plaintiff was contract professor with defendant. Group of colleagues expressed concerns in letter to dean about hiring procedure used in employing plaintiff. Plaintiff claimed plaintiff suffered emotional and financial losses as result of letter. Defendant had collective agreement. Defendant argued claim arose during employment and arose under terms of collective agreement requiring arbitration of claim and excluded jurisdiction of court. Plaintiff acknowledged all of claims arose from dispute properly falling under collective agreement if plaintiff were found to be bound by collective agreement. Appellant was found to be bound by collective agreement. Policy on discrimination and harassment did not limit or amend terms of collective agreement which clearly did not permit court to have jurisdiction in plaintiff’s type of claim. Defendants’ motions were allowed. Court had no jurisdiction to deal with claims.

Christie v. Trent University
(Aug. 12, 2011, Ont. S.C.J., Tucker J., File No. 10-20390) 205 A.C.W.S. (3d) 318 (8 pp.).

Administrative Law

JUDICIAL REVIEW

Applicant had to exhaust remedies before Law Society before seeking review by court

Hearing Panel made discipline decision and penalty. Applicant appealed decision of Hearing Panel to Appeal Panel. Applicant would have right to appeal final decision of Appeal Panel. Application for judicial review was quashed as premature. Applicant had to exhaust remedies before Law Society before seeking review by court. There were no exceptional circumstances. Material did not show proceeding before Appeal Panel would be fatally flawed. Allowing application to proceed would fragment proceeding before Law Society.

Mundulai v. Law Society of Upper Canada (Aug. 9, 2011, Ont. S.C.J. (Div. Ct.), Jennings, Ferrier and Swinton JJ., File No. 330/11) 205 A.C.W.S. (3d) 309 (3 pp.).

Taxation

GOODS AND SERVICES TAX

While transfer amounted to negligence, action did not constitute gross negligence

Appeal by taxpayer from reassessment by Minister. Taxpayer transferred house it was building to its two shareholders. Taxpayer did not collect or remit GST on transfer. Minister assessed taxpayer on basis that it transferred both legal and beneficial interest in property to its shareholders, thereby resulting in supply of property on which GST was required to be collected pursuant to ss. 165 and 221 of Excise Tax Act (Can.). Minister imposed gross negligence penalty. Appeal allowed in part. Matter was referred back to Minister for reassessment on basis that s. 285 gross negligence penalty be deleted. Taxpayer was liable to collect and remit GST on transfer of property. Taxpayer failed to establish requisite certainty of intention establishing that property was in trust for taxpayer subsequent to transfer of title. While transfer by taxpayer amounted to negligence, action did not constitute gross negligence. Shareholders held subjective belief that taxpayer maintained some interest in property given that it continued to pay expenses related to it.

Canpar Developments Inc. v. Canada (Aug. 2, 2011, T.C.C., Paris J., File No. 2009-3264(GST)I) 205 A.C.W.S. (3d) 588 (7 pp.).

Employment Insurance

ENTITLEMENT

Lump sum given for loss of employment qualified as retiring allowance and excluded from insurable earnings


Appellant took maternity leave. Employer paid amounts to appellant to top up maternity leave. Employer terminated appellant’s employment. Appellant’s position was eliminated and replaced with reclassified position. Appellant received lump sum for loss of employment. Appellant applied for unemployment benefits. Appellant was informed appellant did not qualify for benefits. Appeal was dismissed. Lump sum given for loss of employment qualified as retiring allowance which was excluded from insurable earnings. Amendment made to Insurable Earnings and Collection of Premiums Regulations (Can.), excluded from insurable earnings maternity leave top up.

Geddes v. M.N.R.
(Aug. 8, 2011, T.C.C., D’Auray J., File No. 2010-3092(EI)) 205 A.C.W.S. (3d) 406 (8 pp.).

Immigration

EXCLUSION AND EXPULSION

Danger opinion remained valid despite overturning of conviction

Applicant was permanent resident. Applicant incurred extensive criminal record. Applicant was convicted of sexual assault of former spouse. Danger opinion was issued against applicant. Applicant was deported. Applicant re-entered Canada without approval of Minister and was charged with re-entering without permissions. Two inadmissibility reports were issued against applicant. Second deportation order was issued. Former spouse recanted allegations of sexual assault. At new trial sexual assault charges were dismissed. Danger opinion and first deportation order were already judicially reviewed. Applicant sought to quash danger opinion and two deportation orders. Application for judicial review was dismissed. Court was not in position to consider submission on res judicata given direction from Federal Court of Appeal and following its application by Justice. Danger opinion remained valid despite overturning of conviction for sexual assault. Danger opinion was based on three convictions. Danger opinion was not based on nullity. First deportation order was moot. Second deportation order was valid. Inadmissibility report and second deportation order were not to be quashed despite overturning of criminal conviction. Loss of permanent residence status was legal and there was no error in execution of deportation order. Section 326(2) of Immigration and Refugee Protection Regulations (Can.), remained in effect.

Pascale v. Canada (Minister of Citizenship and Immigration)
(July 13, 2011, F.C., O’Keefe J., File No. IMM-3127-10) 205 A.C.W.S. (3d) 500 (25 pp.).

Crown

ARMED FORCES

Course of action taken by board arrived at through fair process

Applicant failed three baseline exercises. Board determined applicant should cease geo tech training. Applicant successfully grieved and was given credit for qualification level 4. Applicant failed two performance objectives in qualification level 5. Board again recommended applicant cease geo tech training. Commanding officer ordered recommendation to be put into effect. Applicant’s grievance was dismissed. Applicant was found to have been treated fairly, reasonably and in accordance with Canadian Armed Forces policies and directives. Application for judicial review was dismissed. Applicant’s attempts at retest were not likely to be successful. Applicant simply disagreed with decision. Allegations that it was unfair in endorsing tainted earlier decision were nothing more than bald assertions. There was nothing that could be described as reviewable error based on unreasonableness or procedural fairness. Decision was reasonable. Course of action taken by board was within its jurisdiction and arrived at through fair process. Assertions applicant was deprived of opportunity to present case was unsubstantiated.

Syed v. Canada (Attorney General)
(July 29, 2011, F.C., Russell J., File No. T-1704-10) 205 A.C.W.S. (3d) 396 (21 pp.).

Charter Of Rights

ENFORCEMENT OF RIGHTS

Impact of breaches on Charter-protected interests of accused were significant

Accused applied to for stay of proceedings or exclusion of evidence based on unreasonable search and seizure. Accused also alleged she was unlawfully detained and that police failed to make provision for her personal needs over course of search. Stay not appropriate remedy. Case involved incidents of past misconduct. While police misconduct should not be condoned it did not rise to level of granting stay in case. Evidence not admitted. Casual disregard for rights of accused could not be condoned. Impact of breaches on Charter-protected interests of accused were significant. Those factors outweighed interests of having case determined on its merits. Admission of evidence would bring administration of justice into disrepute.

R. v. Phillips
(June 21, 2011, Ont. S.C.J., Gordon J., File No. 01/10) 96 W.C.B. (2d) 79 (8 pp.).

Civil Procedure

TRIAL

Questionable evidence had any probative value

Plaintiff brought negligence action for motor vehicle collision. Jury verdict found defendants were not liable. Jury fixed damages. Plaintiff brought motion for mistrial because defendants failed to make disclosure of relevant documents. Motion was dismissed. Production of memo was collateral and privilege was maintained for it. There was no implied waiver of privilege of memo. Purchaser’s financial documents were not relevant at time they were received from purchaser. Counsel had reasonable factual basis for determination of relevancy. Evidence was weak and comparison could not be drawn out and it therefore was not relevant to plaintiff at time of discovery. There was no satisfactory evidence that evidence would have been presented. There was no evidence plaintiff searched out evidence and was denied it. It was not just to order new trial. It was questionable evidence had any probative value. There was no evidence counsel would use evidence.

Dali v. Panjalingham
(July 12, 2011, Ont. S.C.J., McLean J., File No. 07-CV-40166) 205 A.C.W.S. (3d) 94 (14 pp.).
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A recent Court of Appeal decision acknowledged a ‘new reality’ of civil litigation in which courts are seeing a significant number of self-represented litigants. Are courts are doing a good job of addressing the needs of self-represented litigants?
Yes, judges are doing a good job of ensuring trial fairness.
No, courts have only just begun to consider the many issues surrounding self-represented litigants.