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Federal and provincial pension plans

Federal pension plans

Application for disability pension dismissed

Disability pension applicant claimed he was no longer able to work as mason after motor vehicle accident in 2008. Applicant provided some administrative services to his company until company went bankrupt in 2011 and performed some work in 2012. Applicant’s application for disability pension under Canada Pension Plan was dismissed. Social Security Tribunal-General Division (SST-GD) dismissed applicant’s appeal on basis that he did not establish that he suffered from severe disability because he had capacity to work. Social Security Tribunal-Appeal Division (SST-AD) dismissed applicant’s application for leave to appeal. Applicant brought application for judicial review. Application dismissed. Evidence established that applicant suffered injuries in 2008 motor vehicle accident and injuries impacted his work capacity in physically demanding occupation. SST-GD reasonably concluded that applicant possessed transferable work skills, retained capacity to work, had continued to work until 2012 in modified role, and ceased to work because he was not offered more work. SST-GD had no duty to request further medical information from applicant. It was not unreasonable for SST-AD to conclude that there was no reasonable chance of success on appeal and that arguments repeated submissions made before SST-GD. SST-AD did not err in refusing to consider new evidence in support of application for leave. Bald allegation of ineffective assistance of counsel could not succeed. Recognizing strong presumption in favour of adequate representation and requirement to establish actual prejudice, applicant failed to demonstrate any basis justifying intervention.
Glover v. Canada (Attorney General) (2017), 2017 CarswellNat 1890, 2017 FC 363, Patrick Gleeson J. (F.C.).

Law Enforcement Agencies

Particular police and security forces

Canadian Security Intelligence Service

Canadian Security Intelligence Service human source privilege not applicable to designated judge

Issue arose as to proper procedure to be followed when government claimed privilege pursuant to s. 18.1 of Canadian Security Intelligence Service Act (CSIS Act) applied to in camera ex parte proceeding. As result of Federal Court of Appeal decision, class privilege applied to facts involving CSIS human source. At issue was whether redacted information produced may be viewed in un-redacted form by designated judge. Purposes of privilege set out in s. 18.1 of CSIS Act were to ensure that identity of CSIS human sources remained confidential to protect their life and security, and to encourage individuals to provide information to CSIS. In any proceeding before court, disclosure of identity of CSIS human source or any information from which identity of CSIS human source may be identified was forbidden, but order could be sought declaring that individual was not CSIS human source or that information sought did not identify CSIS human source or that identity of CSIS human source was essential to establishing innocence of accused. CSIS human source privilege of s. 18.1 of CSIS Act was not applicable to designated judge. Section 38.01(6)(d) of Canada Evidence Act was strong indicator that Parliament expected designated judge to receive extremely sensitive national security information, as designated judge was excluded from ambit of s. 38 scheme which prohibited disclosure of sensitive information. As part of overarching judicial duties to ensure proper administration of justice and fairness in ex parte, in camera proceedings, designated judge could raise and address disclosure without application triggered by specified persons. Designated judge could receive disclosure of un-redacted information because judge was not counsel for government’s litigation opponent within scope of meaning of disclosure in s. 18.1(2) of CSIS Act. Section 18.1 of CSIS Act must be interpreted in manner that allowed designated judge to perform his or her duties as independent adjudicator, and designated judge must be provided un-redacted information in order to determine whether privilege existed or if any exceptions applied. Parliament generally explicitly stated in law when it intended that judges were to be prohibited from examining information to determine whether claim of privilege was valid or to verify fact related to CSIS human source. CSIS had elevated duty of candour toward designated judges presiding over ex parte, in camera hearings, and consequences of strictly and literally interpreting s. 18.1 of CSIS human source privilege would significantly impact ability of designated judge to ensure fairness and proper administration of justice. Strict and literal interpretation of s. 18.1 of CSIS Act was rejected, and based on reading of CSIS Act as whole and in practical context in which it was applied, CSIS human source privilege could not be applicable to designated judge. Legislator did not intend to restrict designated judge’s ability to properly fulfil duties of ensuring fairness and maintaining proper administration of justice by limiting power to question and address appropriateness of communicated information over course of ex parte, in camera proceedings.
Unnamed Person, Re (2017), 2017 CarswellNat 1301, 2017 CarswellNat 1302, 2017 FC 136, 2017 CF 136, Simon Noël J. (F.C.).


Income tax

Administration and enforcement

Chief Justice did not have power to remove file from judge

Taxpayer’s appeal was heard by one judge of Tax Court. Nearly two years later, Chief Justice of Tax Court removed file from that judge and reassigned it to another judge of Tax Court to render judgment, on consent of parties. Taxpayer appealed on ground that Chief Justice did not have power to remove file from judge who heard appeal and reassign it to another judge to render decision. Appeal allowed. Even though parties did not raise this issue at trial, it was matter that must be addressed. Chief Justice did not have power to remove file from judge who heard appeal and reassign it to another judge to render judgment, for reasons set out in similar case. Conclusion and reasons in similar case were applicable to this case. Judgment rendered by second judge was nullity and matter was referred to judge who heard tax appeal to render judgment. Findings of fact were to be made by judge who heard tax appeal.
Birchcliff Energy Ltd. v. R. (2017), 2017 CarswellNat 1821, 2017 FCA 89, David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10756, 2015 CarswellNat 4799, 2015 TCC 232, 2015 CCI 232, Robert J. Hogan J. (T.C.C. [General Procedure]).

Immigration and Citizenship

Appeals to Federal Court of Appeal and Supreme Court of Canada

Powers of court

Appellant’s removal deferred pending redetermination of application for permanent residence

Appellant L was permanent resident of Canada, who held citizenship of his native Guyana. L did not make application for citizenship, despite having resided in Canada since 1966. L had 9-year-old daughter, whose mother was member of First Nations group giving child Indian status. L had custody of child, due to mother’s substance abuse issues. L had criminal record, with most recent offence being 2003 conviction for assault causing bodily harm. Accused was originally subject to deportation order as result of record, with order being stayed in 2005. Order was reactivated, when it was found that L had not complied with order. After daughter was born in 2007, L lived with mother and daughter. L established own residence in 2011, so that he could have custody as awarded by court. L made pre-removal risk assessment (PRRA) application in 2013, which was denied. L was to be removed in 2014. L filed applications to re-open appeal, for permanent resident status on humanitarian and compassionate (H&C) grounds and request to defer removal. L claimed that child would be removed from Aboriginal heritage if forced to live in Guyana with him. Deferral request was denied. L appealed from this decision. Appeal allowed. Short-term best interests of child did include consideration of Aboriginal heritage. Enforcement officer did not take into account short-term impact of L’s deportation on child. Child was vulnerable as child of Aboriginal heritage. Assumption that child would be able to return to Canada at some point was unreasonable. There was no one else available to take care of child on full-time basis in Canada. L was not willing to make child ward of state. There was no opportunity for child to maintain connection to heritage in Guyana. L’s deferral application was remitted to another enforcement officer for redetermination, in accordance with court’s reasons.
Lewis v. Canada (Public Safety and Emergency Preparedness) (2017), 2017 CarswellNat 2764, 2017 FCA 130, David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10508, 2015 CarswellNat 6206, 2015 FC 1309, 2015 CF 1309, Annis J. (F.C.).

Natural Resources


Timber licences

Court had no jurisdiction to review arbitrator’s decision in regard to timber licence valuation methodology

Parties entered into Settlement Framework Agreement, but were unable to settle issue of compensation under Forestry Revitalization Act for improvements made by T to land. Arbitration was held in accordance with Forestry Revitalization Act. Arbitrator found on statutory interpretation issue that proper valuation method was depreciation replacement cost method and on contractual interpretation issue that agreement reached by parties prior to arbitration did not exclude interest from province’s payment of compensation to T for improvements. Arbitrator also determined that T was not entitled to compensation for improvements to which it did not lose access. On appeal, application judge upheld arbitrator’s award except in connection with statutory interpretation, which was remitted to arbitrator and resulted in additional award in amount equal to value of improvements. Court of Appeal reversed application judge’s decision concluding that arbitrator erred on both statutory interpretation and contractual interpretation issues as well as subsequent ruling regarding statutory application issue. T appealed. Appeal allowed in part. Arbitrator’s initial valuation predicated on depreciation replacement cost methodology was restored. Arbitrator’s initial ruling that province must pay interest on top of improvements compensation it owed to T was restored. Arbitrator’s initial ruling denying compensation to T for improvements losses pertaining to lillooet licence was restored. Courts had no jurisdiction to review arbitrator’s decision in regard to whether arbitrator correctly applied valuation methodology to licence because it was mixed question. Courts’ jurisdiction was limited to statutory interpretation issue of identifying pool of methodologies consistent with Revitalization Act.
Teal Cedar Products Ltd. v. British Columbia (2017), 2017 CarswellBC 1648, 2017 CarswellBC 1649, 2017 SCC 32, 2017 CSC 32, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellBC 1550, 2015 BCCA 263, Lowry J.A., Chiasson J.A., and MacKenzie J.A. (B.C. C.A.).

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Impossible to certify class action against American defendants

Plaintiffs B and P were two former junior hockey players, who played in defendant league based in both Ontario and two U.S. states. B and P claimed that league and its defendant member clubs had violated employment law, by not paying them at least minimum wage. B and P proposed class action, on behalf of three classes of players based in Ontario, Michigan and Pennsylvania. League and clubs claimed that B and P were not proper representative plaintiffs. League and clubs claimed that common issues could not be found between Canadian and American-based players, due to operation of American state law. B and P moved for certification of action as class action. Motion granted in part. Class action certified on issues of breach of employment standards and unjust enrichment. Action not certified against American clubs. B and P certified as representative plaintiffs. Criteria for class action was met for all pleaded causes of action. Issues of American law would make it impossible for common issues to be litigated, for all proposed plaintiffs. Preferable procedure would be for American-based plaintiffs to litigate matter in corresponding state courts. Identifiable class was certified as Ontario-based plaintiffs, between 2012 season and date of certification motion.
Berg v. Canadian Hockey League (2017), 2017 CarswellOnt 6227, 2017 ONSC 2608, Perell J. (Ont. S.C.J.).

Administrative Law

Prerequisites to judicial review

Jurisdiction of court to review

Examining board not entitled to grant fifth opportunity to prospective pharmacist to write licensing exam

Applicant A was prospective pharmacist. Respondent examining board would not grant A 5th opportunity to write licensing examination. A applied for judicial review of board’s decision. Application dismissed. Decision of board was not reviewable. Board did not violate any of its own processes, but only set out limit for writing examination at 4 attempts. Board was not empowered to grant A 5th attempt.
Aljawhiri v. Canada (Pharmacy Examining Board) (2017), 2017 CarswellOnt 6270, 2017 ONSC 2609, Kiteley J., Taylor J., and Matheson J. (Ont. Div. Ct.).


Income tax

Administration and enforcement

Minister awarded costs after taxpayer failing to appear at status hearing

Taxpayer’s appeal from reassessments was dismissed due to his failure to appear at status hearing. Taxpayer’s application to set aside dismissal was dismissed. Costs submissions received. Minister awarded costs in amount of $19,689. Minister was entirely successful in application, relating to significant amount of money as underlying appeal involved approximately $1.165 million. Amount of work involved in application was not significant and issues were neither complex nor of any broader importance. Taxpayer was responsible both for delaying hearing of application and for unnecessarily extending hearing itself. Taxpayer’s conduct during application, seeking repeated adjournments shortly before scheduling hearing, gave impression of intentional delay and abuse of court’s goodwill. Taxpayer’s conduct during underlying appeal strongly reinforced impression of intentional delay, as everything about his conduct screamed of someone who desperately wanted to delay resolving tax problem. Taxpayer’s lack of communication with counsel led to lack of preparation that extended duration of proceedings. Four-day hearing of this application was extraordinarily long, as such applications normally took no more than one day. Taxpayer’s conduct significantly affected duration of proceedings. Taxpayer was not credible and, as great deal of time was wasted proving that he had received communications that he denied receiving, hearing would have been much quicker if he had admitted truth. Considering all factors and particularly taxpayer’s conduct, award of costs in excess of tariff was appropriate. Figure proposed by Minister was entirely reasonable.
Wolsey v. R. (2017), 2017 CarswellNat 688, 2017 TCC 34, David E. Graham J. (T.C.C. [General Procedure]); additional reasons (2016), 2016 CarswellNat 5312, 2016 TCC 236, David E. Graham J. (T.C.C. [General Procedure]).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Complainant’s allegation of personal harassment substantiated but not allegation of racial discrimination

Fairness. 40-year-old applicant was of Iranian descent and was long-term employee of respondent. Applicant made complaint to respondent that he was being harassed by supervisor, and respondent found supervisor engaged in hostile and unprofessional behaviour, and required him to attend leadership training. Applicant filed second complaint that supervisor ignored him, demeaned him, and made him feel incompetent. Respondent investigated and concluded applicant’s allegation of personal harassment was substantiated but there was no racial discrimination, facilitated apology and discussion, and ultimately terminated supervisor’s employment when his behaviour did not improve. Applicant made complaint to human rights commission that he was discriminated against based on race, ethnic origin and age, and that respondent treated him in adverse manner and failed to provide harassment-free workplace. Investigation was conducted and commission found further inquiry into complaint was not warranted. Applicant brought application for judicial review of decision dismissing his compliant. Application dismissed. There was no evidence on record supporting applicant’s allegation investigator was biased and prejudged issue, and applicant never raised contention of bias earlier, so could not do so now. Investigator refused to review audio recordings of conversations with witnesses, on basis there was no way to authenticate voices and context. This rationale was not reasonable, as applicant could have provided context and identified voices, and investigator could have spoken to identified individuals. Tapes were not obviously critical evidence, as they were very brief and applicant summarized them in his submissions. Investigator did not interview two witnesses identified by applicant because existence of harassment was not at issue, and applicant did not identify other evidence they could have provided. Applicant was able to make submissions and arguments to commission, and there was no unfairness and no investigative flaws so fundamental they could not be remedied by his submissions.
Majidigoruh v. Jazz Aviation LP (2017), 2017 CarswellNat 887, 2017 FC 295, Anne L. Mactavish J. (F.C.).

Aboriginal Law

Government of Aboriginal people


First Nations electoral officer violating procedural fairness

Appeals. KH, DH, and G were members of First Nation (FN) that was holding election. Electoral officer (EO) determined KH was ineligible to run for office due to violation of election regulations. DH received four votes less than least successful candidate but EO determined there would be no recount. KH appealed to FN’s Election Appeal Committee from EO’s ineligibility determination and in relation to eligibility of other candidates, but EO determined his appeal would not be heard. DH appealed to committee in relation to numerous voting irregularities and eligibility of candidate W, and G appealed to committee in relation to one voting irregularity and eligibility of candidates W and C. Committee, with EO as chairman, only considered eligibility of W and C at appeal hearing held in major city away from FN, and appeals were dismissed. KH, DH, and G brought application for judicial review. Application granted; matter remitted for redetermination. EO had himself determined which appeals would be heard, so there was breach of procedural fairness in not having notices of appeal determined in whole by committee. Importance of committee to governance of FN could not be overstated, and it remained for majority of committee to make decisions regarding appeals. Since EO had determined KH’s appeal would not proceed, it was also noted that it would seem obvious to most observers that you should not sit in appeal of your own decision. Location of hearing did not give rise to procedural unfairness since committee could set out its own rules and procedure, location was within range of reasonableness, it was not known why witnesses had not attended, and witnesses’ failure to attend did not in itself render hearing procedurally unfair.
Hamelin v. Sturgeon Lake Cree Nation (2017), 2017 CarswellNat 722, 2017 FC 163, Glennys L. McVeigh J. (F.C.)
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