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Aboriginal Law

Government of Aboriginal people

Councils

Process that resulted in passage of resolution breached procedural fairness

Respondents, purporting to act as chief and council of First Nation, passed resolution that purported to vest responsibility for First Nation school board in chief and council and to invalidate decisions made by board that were not supported by quorum of council and/or required ratification of such decisions by majority of council. Effect of resolution could include invalidating board’s decision to restructure and to dismiss Director of Education. Applicants maintained that resolution was not valid because it was passed at meeting of council that was not duly convened and without notice to chief and council, and resolution was beyond jurisdiction of chief and council. Applicants applied for judicial review of resolution. Application granted. Process that resulted in passage of resolution breached procedural fairness. Meeting was called for only one purpose, which was to discuss forensic audit, and it was not regular meeting of council but was more akin to special meeting. Respondents could not opportunistically spring resolution on chief at meeting called for different purpose. Although all councillors were present at meeting and chief was aware of concern of some councillors regarding school board, applicants had no advance warning that resolution would be tabled, or of its wording, and they had no opportunity to prepare and to make submissions. Respondents’ actions in passing resolution without sufficient notice to chief and to all councillors and without providing all councillors with opportunity to make representations was breach of procedural fairness, and resolution was invalid. Resolution failed to recognize that school board was separate entity that was accountable to Band and not directly to chief and council, that school board election procedures could not be unilaterally amended by chief and council, and that resolution that established band must be respected.
Peguis First Nation v. Bear (2017), 2017 CarswellNat 356, 2017 FC 179, Catherine M. Kane J. (F.C.).

Labour and Employment Law

Public service employees

Appeal and judicial review

Applicant’s request for reconsideration was doomed to fail

On direction of Public Service Labour Relations Board resolving union’s unfair labour complaint, union and public service employer reached agreement that employees’ home contact information would be disclosed to union and this was incorporated into Board order. Applicant, who was dues-paying member of bargaining unit but not union member, took position that disclosure of her home contact information to union violated her privacy rights. Applicant’s application for judicial review was allowed, and she was granted intervenor status on redetermination that confirmed disclosure with provisions added. Applicant’s application for judicial review was dismissed and appeal to Supreme Court of Canada (SCC) was dismissed. Applicant’s request for reconsideration was refused by Board. Applicant applied for judicial review. Application dismissed. Board reasonably determined that applicant’s proposed “new” evidence, relating to federal legislative history surrounding issues of strike votes, final-offer votes and disclosure of home contact information, would not have material effect on outcome. Proposed evidence was not actually new as it had been publicly available for years. Board reasonably concluded that applicant was seeking to reopen SCC’s judgment on this matter, which definitely addressed her long-standing concern with disclosure of her home contact information to union. This concern remained at core of reconsideration request. Board considered relevant factors of importance of finality of its decisions, length of and explanation for delay, and absence of new evidence. Applicant’s request for reconsideration was doomed to fail in light of deficiencies of her proposed evidence and SCC precedent. Fact that presiding Board member had prior affiliation with different federal public service union did not raise reasonable apprehension of bias.
Bernard v. Canada Revenue Agency (2017), 2017 CarswellNat 659, 2017 FCA 40, J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David G. Near J.A. (F.C.A.); application for judicial review refused (2015), 2015 CarswellNat 3417, 2015 CarswellNat 3418, 2015 PSLREB 59, 2015 CRTEFP 59, Kate Rogers Member (Can. P.S.L.R.E.B.).

Constitutional Law

Charter of Rights and Freedoms

Nature of rights and freedoms

S. 18(1) of Agriculture and Agri-Food Administrative Monetary Penalties Act was not unconstitutional

Applicant was part of pork production conglomerate involved in production line, slaughter and transport of pigs. Applicant requested revision of 12 notices of violation issued by Canadian Food and Inspection Agency related to transportation of animals in manner that caused undue suffering during journey. Due to high fines in spite of all precautions taken during journey, applicant could not make ends meet. Applicant unsuccessfully challenged constitutionality of s. 18(1) of Agriculture and Agri-Food Administrative Monetary Penalties Act on basis that it violated s. 7 of Canadian Charter of Rights and Freedoms. Applicant brought application for judicial review. Application dismissed. Purpose of Act was to ensure compliance with food legislation and did not aim to punish offenders. Applicant was not person charged under provision insofar as Act is not intended to right wrong done to society but to ensure implementation of regulation of activities in agriculture and agribusiness. It was not demonstrated that regime jeopardized applicant’s economic viability or plunged applicant into state of psychological distress related to fear for their health. Amount of fine was determined by taking into account history of each offender for previous violations or offenses, nature of negligence and harm done in accordance with regulations.
Mario Côté Inc. c. Canada (Procureur général) (2017), 2017 CarswellNat 517, 2017 CAF 36, Johanne Gauthier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.).

Evidence

Examination of witnesses

Previous statements

Type of evidence placed improperly before jury was particularly pernicious

Accused was charged with several offences against complainant wife including assault, sexual assault, and assault with weapon. Before trial, accused applied to cross-examine wife on her previous sexual activity, including video of parties engaging in anal sex and texts between wife and person with whom she was having affair during marriage. Trial judge admitted cross examination on texts and video transcript. Defence counsel completed cross-examination of wife on Friday afternoon. Crown counsel advised he had no questions on re-direct and trial resumed on following Tuesday. At commencement of Tuesday hearing, Crown sought to have complainant recalled so she could testify as to what she told others to rebut defence’s suggestion of recent fabrication. Accused was acquitted of all charges. Crown’s appeal, in part on basis that trial judge erred in refusing to permit Crown to lead evidence to rebut allegation of recent fabrication that arose during cross-examination of wife, was dismissed. Crown appealed. Appeal allowed. Acquittals were set aside and new trial was ordered. Trial judge erred both in admitting certain evidence and excluding other evidence. Trial judge erred in allowing text message and video transcript to be used as they had potential of feeding first of the twin myths and that in circumstances, proper jury examination could not undo that damage. Had evidence of rebutting recent fabrication been allowed, it might have aided in rehabilitating complainant’s credibility, thereby changing jury’s view of reliability of complainant’s evidence. Type of evidence placed improperly before jury was particularly pernicious.
R. v. B. (S.) (2017), 2017 CarswellNfld 111, 2017 CarswellNfld 112, 2017 SCC 16, 2017 CSC 16, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); reversed (2016), 2016 CarswellNfld 183, 2016 NLCA 20, J.D. Green C.J.N.L., M.H. Rowe J.A., and C.W. White J.A. (N.L. C.A.).

Criminal Law

Offences

Sexual assault


Trial judge considered complainant’s mental development

Accused was convicted of sexual assault and touching complainant under age of 14 for sexual purpose.Accused was found to be dangerous offender and sentenced to indeterminate term of imprisonment. Accused appealed convictions and sentence. Appeals dismissed. Accused did not establish that trial judge was uneven in scrutiny of his testimony and of complainant’s. Trial judge’s reasons revealed keen awareness of issues raised about complainant’s credibility and reliability. Complainant did not get free pass from trial judge but, in some respects at least, her evidence was confirmed by other testimony and findings including condition of her cervix and anus and DNA deposits around fly of accused’s pants and crotch area of complainant’s clothes. Trial judge provided reasons for rejecting accused’s testimony that were firmly grounded in evidence and in manner in which accused testified, and there was nothing unfair, unreasonable or hypercritical in trial judge’s approach or findings. Balance of trial record did not suggest that accused’s testimony was subjected to more demanding level of scrutiny than complainant’s. Trial judge’s reasons did not reflect either inappropriately superficial level of scrutiny of complainant’s evidence or diminution of standard of proof. Despite recognized issues with complainant’s evidence, trial judge accepted her evidence on central issue of whether sexual assault occurred as truthful. Trial judge considered complainant’s mental development, understanding and ability to communicate but did not weaken standard of proof by situating evidence in that context. Trial judge was entitled to reach conclusion he did.
R. v. Radcliffe (2017), 2017 CarswellOnt 2870, 2017 ONCA 176, David Watt J.A., S.E. Pepall J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2009), 2009 CarswellOnt 3711, P.F. Lalonde J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2010), 2010 CarswellOnt 7882, 2010 ONSC 5829, Paul F. Lalonde J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

Continuation of questioning after accused expressed wish to see lawyer was breach of Charter rights

Accused was arrested in connection with recently-committed robbery and stated that he wanted to speak to duty counsel. Police officer continued to question him, prompting accused to give exculpatory statement about his whereabouts. Accused spoke to duty counsel before police interview in which he gave substantially same exculpatory statement as he had before. At trial, police interview statement was admitted while accused advanced similar alibi except that he claimed to have been with spouse shortly before with robbery instead of woman named S. Accused was convicted of robbery and related offences. Accused appealed. Appeal allowed. Connections between first statement and interview led to conclusion that interview statement was tainted. Trial judge did not apply test from precedent, focusing on whether there was causal link between statement and interview and not considering temporal or contextual considerations. Officer’s failure to hold off from questioning after accused expressed wish to see lawyer was breach of s. 10(b) of Canadian Charter of Rights and Freedoms. On review of entire course of events from breach to interview, it was part of same transaction or course of conduct. There was close contextual link as, from accused’s perspective, interview after four hours in police custody with about five minute conversation with counsel, was continuation of earlier questioning as accused noted he was repeating what he had already told police. If police wanted fresh start, they should have made clear to accused that his decision whether or not to speak to them should not be influenced by anything he had already said to them.
R. v. Hamilton (2017), 2017 CarswellOnt 2871, 2017 ONCA 179, K. Feldman J.A., E.E. Gillese J.A., and S.E. Pepall J.A. (Ont. C.A.).

Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Collective agreement made matter arbitrable

Insured received long-term disability (LTD) benefits from insurer under group policy through her employment on basis of collective agreement. When benefits were terminated, insured brought action against insurer. Insurer brought motion to dismiss action on basis that court lacked jurisdiction. Motion judge granted motion and dismissed action on ground of lack of jurisdiction. Judge held that collective agreement made matter arbitrable. Insured appealed. Appeal dismissed. Fact that LTD benefits were paid under insurance policy did not change fact that insured’s entitlement to LTD benefits was provided by collective agreement. Collective agreement established insured’s rights to LTD benefits and covered terms, amount, definition of total disability, and referred to policy. Jurisdiction over dispute belonged to arbitrator.
Barber v. Manufacturers Life Insurance Co. (2017), 2017 CarswellOnt 2631, 2017 ONCA 164, H.S. LaForme J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.).

Administrative Law

Prerogative remedies

Certiorari

Applicant had automatic right of appeal to provincial Civilian Police Commission

Applicant police officer was charged with discreditable conduct, unnecessary or unlawful exercise of authority and insubordination. Hearing officer found applicant guilt of some of charges and hearing date was set to determine appropriate penalty. Application’s motion requesting that hearing officer recuse himself for reasonable apprehension of bias was dismissed. Applicant applied for judicial review. Application dismissed. Application was premature as applicant had automatic right of appeal to provincial Civilian Police Commission from decision of hearing officer. Commission would have authority to consider bias argument on appeal. Exceptional circumstances were required to justify early intervention. Hearing had been held and determination made on merits. Only remaining step was penalty, with limited costs associated with completing hearing. It was appropriate to allow appeal process to play out.
Pereira v. Hamilton Police Service (2017), 2017 CarswellOnt 1443, 2017 ONSC 924, Morawetz R.S.J., Nordheimer J., and Mulligan J. (Ont. Div. Ct.).

Professions and Occupations

Barristers and solicitors

Relationship with client

Motion for removal of law firm was dismissed

In 2008 plaintiffs sought representation in respect of Canadian patent pending and possible infringement claim. One of plaintiffs, CS, contacted lawyer at law firm. Lawyer informed CS that he would have to complete standard conflict check. Lawyer informed CS that he could not act for plaintiffs due to conflict of interest. Lawyer provided CS with recommendations as to potential law firms to represent plaintiffs. Law firm was later appointed as solicitors of record for defendants in ongoing matter opposing parties. In 2015, plaintiffs brought motion for removal of law firm on basis of 2008 interactions between CS and lawyer. Prothonotary dismissed motion. Federal Court dismissed plaintiffs’ appeal. Plaintiffs appealed. Appeal dismissed. Prothonotary found lawyer established that no information was imparted which could be relevant to underlying dispute. Although lawyer could not recall in detail seven year old conversation, prothonotary found that he was seasoned lawyer accustomed to his firm’s conflict of interest review procedure. His handwritten notes taken during phone call corroborated his position that no advice or counselling was given or sought, and that information given was general in nature. Prothonotary’s conclusion was open to him on evidence provided.
Sikes v. EnCana Corp. (2017), 2017 CarswellNat 444, 2017 FCA 37, Marc Noël C.J., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2708, 2016 FC 671, B. Richard Bell J. (F.C.).

Pensions

Federal and provincial pension plans

Federal pension plans

Tribunal was not entitled to dismiss matter on merits without oral hearing

Appellant R claimed entitlement to disability-related benefits. R applied to Federal Court for relief, with application being dismissed. R also filed for judicial review of tribunal decision, finding that proper identification had not been made by R. R brought appeal and judicial review before appeals court. Appeal and judicial review dismissed. Appeal tribunal could have determined application for judicial review differently. Tribunal was not entitled to dismiss matter on merits without oral hearing, because of decision of appeal court. However, sending matter back for reconsideration would have no effect on outcome. R did have opportunity to make submissions. R conceded he would have largely reiterated written submissions at oral hearing.
Robbins v. Canada (Attorney General) (2017), 2017 CarswellNat 405, 2017 FCA 24, David Stratas J.A., Webb J.A., and Scott J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 2463, 2014 CarswellNat 3438, 2014 FC 689, 2014 CF 689, John A. O’Keefe J. (F.C.).
Professions and Occupations
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