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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Environmental Law

Enforcement

Canada did not fulfill obligation to consult aboriginal peoples to reasonable satisfaction

Applicants were several aboriginal bands and others who opposed pipeline development Joint Review Panel found that project was in the public interest and recommended that it go forward subject to 209 conditions. Two certificates of public convenience and necessity were issued. Several appeals and applications for judicial review regarding various aspects of proceedings were brought, and were consolidated into single application. Application granted. Order in council was reasonable and defensible, however, Canada did not fulfill its obligation to consult aboriginal peoples to standard of reasonable satisfaction. Good faith was shown and proper framework was put in place for consultation but consultation aspect of process fell short. Order in council was quashed as well as certificates that were issued under them, and matter remitted. Governor in council’s determination was reasonable in light of administrative law principles. Government did not prejudge result of process, and bias on part of governor in council was not shown. Framework of consultation process was not unilaterally imposed on first nations. Level of funding provided constrained participation in joint review process, but there was no evidence that funding available was so inadequate it made process unreasonable. Canada fell well short of its deep duty to make reasonable efforts to inform and consult. Canada assessed strength of claim of certain bands, but acted improperly in failing to share assessment with affected first nations. Not all items of interest were discussed in consultation process. During consultation meetings, aboriginal groups were repeatedly told that Canada’s representatives were working on assumption that governor in council needed to make its decision by particular date, and were tasked with information gathering, and were not authorized to make decisions. Requirement to give adequate reasons was not shown to be met.
Gitxaala Nation v. R. (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and C. Michael Ryer J.A., A-437-14, A-56-14, A-59-14, A-63-14, A-64-14, A-67-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14) 269 A.C.W.S. (3d) 85.


Crown

Discovery

Canadian Security Intelligence Service Act provided that identity of human sources be confidential

Respondents brought action claiming damages arising from alleged breach of rights and freedoms protected under Canadian Charter of Rights and Freedoms. Attorney General of Canada brought applications pursuant to s. 38 of Canada Evidence Act (CEA). Amended s. 18.1 of Canadian Security Intelligence Service Act (CSISA) provided that identity of human sources, or information that would disclose identity of human sources, was to be kept confidential. Federal Court judge concluded that application of s. 18.1 of CSISA in circumstances of case would be invalid. Attorney General of Canada appealed. Appeal allowed. Section 18.1 of CSISA was not intended to have retroactive effect. Section 18.1 was not merely procedural rule of evidence but it created substantive right in favour of human sources based on status of individuals and special relationship with Canadian Security Intelligence Service, and it trumped public interest in disclosure of all evidence by taking it out of Federal Court jurisdiction under s. 38 of CEA. Once individual met criteria set out in s. 2 of CSISA he or she was source and kept status on ongoing basis, and presumption against retrospective application of statutory provisions under review was not in play. Section 18.1 of CSISA deprived respondents of benefit of more liberal versions of privilege set out in s. 38 of CEA. Legislature intended to protect disclosure of information described in s. 18.1 of CSISA in all proceedings. Presumption against interference with vested rights was rebutted, and s. 18.1 of CSISA was applicable to s. 38 proceeding.
Canada (Attorney General) v. Almalki (July 8, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-520-15) Decision at 261 A.C.W.S. (3d) 102 was reversed. 269 A.C.W.S. (3d) 71.




Civil Procedure

Class actions

Judge ordered there must be at least one publicly identified class representative

Federal government department, HC, sent plaintiffs and other participants in Marijuana Medical Access Program information in envelope marked, “Marijuana Medical Access Program.” Two anonymous plaintiffs brought action against HC alleging breach of contract, negligence, breach of confidence, intrusion on seclusion, publicity to private life, and breach of right to privacy under ss. 7 and 8 of Canadian Charter of Rights and Freedoms. Plaintiffs brought motion for order certifying action as class proceeding on behalf of all participants who received envelopes. Motion judge granted certification, subject to amendment of Charter-based claim and naming of at least one, publicly-identified class representative, holding that plaintiffs had pleaded more than sufficiently to raise matter of bad faith and malice, that class was not overly broad, that common issues would move litigation forward, and that class action was preferable procedure. HC appealed; plaintiffs cross-appealed. Appeal allowed in part; certification order confirmed with respect to negligence and breach of confidence only; all other causes of action dismissed; cross-appeal dismissed. Motions judge made no palpable and overriding error in ordering that there be at least one named plaintiff in addition to anonymous ones. Anonymity of class representatives was at odds with their responsibilities to represent class members’ interests under R. 334.16(1)(e)(i) of Federal Courts Rules (Can.). Ability to communicate with representative plaintiffs was crucial to class members’ ability to decide whether or not to opt out and to decide whether representative plaintiffs were suitable. There was no evidence that there was nobody willing to identify himself or herself publicly as representative of class; several class members appeared in media self-identifying as medical marihuana users and/or producers.
R. v. John Doe (June 24, 2016, F.C.A., C. Michael Ryer J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-343-15) Decision at 257 A.C.W.S. (3d) 528 was reversed. 268 A.C.W.S. (3d) 753.


Labour Relations

Bargaining unit
Board found that employees should be included in first unit for purposes of ballot
Canada Industrial Relations Board made decision in context of revising structure of bargaining units covering employees of French network regarding representation vote. Board found that employees were employees within meaning of Canada Labour Code and should be included in first unit for purposes of ballot. Broadcasting corporation brought application for judicial review. Application dismissed. Decision was made for sole purpose of getting things done quickly so that ballot could take place without delay. Application for judicial review was moot and declaration sought would have no practical use if granted.
Société Radio-Canada c. Syndicat des communications de Radio-Canada (FNC-CSN) (July 19, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-334-15) 268 A.C.W.S. (3d) 652.


Courts

Jurisdiction

Federal Court has jurisdiction to rule upon whether a proceeding subsists

Allergan brought action in Federal Court against Apotex for patent infringement. Parties disagreed on whether settlement reached. Allergan’s motion for order enforcing settlement was granted. Federal Court relied on initial exchange between the parties, suggesting that agreement was essentially in place following these communications. Following initial exchange, there was 23-month exchange of emails, including number of draft Minutes of Settlement. Discussions broke off but Federal Court found that email sent by counsel for Allergan on February 24, 2014 accepted terms contained in draft Minutes of Settlement sent by Apotex on January 13, 2014. Federal Court concluded that although parties did not place signatures on formal agreement, they had reached agreement on all essential terms. Apotex’s appeal was allowed. Federal Court has jurisdiction to determine whether patent infringement action has been settled and, if so, to enforce the settlement agreement. When contract law issue before the Court is part and parcel of matter over which Federal Court has statutory jurisdiction, Federal Court has jurisdiction over the contract. Federal Court also has, as part of its plenary power, jurisdiction to rule upon whether or not a proceeding subsists. Existence or non-existence of settlement agreement affects status of proceedings before the court.
Apotex Inc. v. Allergan, Inc. (May. 18, 2016, F.C.A., M. Nadon J.A., Johanne Trudel J.A., and David Stratas J.A., A-204-15) Decision at 252 A.C.W.S. (3d) 433 was reversed. 268 A.C.W.S. (3d) 548.


Labour Relations

Arbitration

Adjudicator had duty to apprise parties that interpretation not contemplated by them was being considered

Applicant grievor was required by employer to travel internationally to carry out systems repairs on ship. Employer paid applicant for hours travelled at double time rate, under clause 17.03(a) of collective agreement governing compensation for days on which employees travelled but did not work, leading to total amount of pay equating to 22 hours straight time. Applicants argued that he was entitled to pay for 15 additional hours under clause 17.03(d) of collective agreement, governing travel pay where employees travelled overnight and no sleeping accommodation was required, while employer believed he was only entitled to seven more hours. Applicants’ grievance was dismissed on basis that applicant was only entitled to compensation under clause 17.03(d) and not under clause 17.03(a) of collective agreement. Applicants applied for judicial review. Application granted. Adjudicator ignored parties’ common interpretation of clause 17.03(a) of collective agreement and shared view that issue to be determined was how much additional compensation he could receive under clause 17.03(d) of agreement. Adjudicator had duty to apprise parties that he was considering interpretation of clause 17.03 of collective agreement that neither party had contemplated. Applicants and employer had no indication whatsoever that their common and accepted interpretation could be questioned. Procedural fairness dictated that they should have been put on notice and afforded opportunity to address issue and adduce evidence to counter adjudicator’s interpretation of clause 17.03(d) of collective agreement. Since collective agreement governed relationship between parties, it was critical that parties be afforded opportunity to be heard since they must live by terms of their contract. Both parties had vital interest in adjudicator’s interpretation of their collective agreement. Adjudicator came to different interpretation of clause 17.03(d) without any input from parties on how that interpretation could possibly impact on application of clause 17.03 generally. As matter of procedural fairness, parties should have been given opportunity to present arguments and adduce evidence on such determinative issue.
Arsenault v. Canada (Attorney General) (June 14, 2016, F.C.A., Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-436-15) 268 A.C.W.S. (3d) 431.


Immigration

Judicial review

Certified questions did not comply with s. 74 of Immigration and Refugee Protection Act (Can.)

Applicants came from Hungary, claiming refugee protection on basis of persecution based on their Roma ethnicity. Refugee Protection Division of Immigration and Refugee Board rejected claim, concluding that discrimination suffered by applicants did not reach level of persecution and that applicants did not rebut presumption that state protection was adequate. Applicants’ application for judicial review was dismissed. Applicants appealed on two certified questions. Appeal dismissed. First question, as to whether Board erred if it concluded state protection was adequate while failing to determine operational adequacy of protection measures introduced in democratic state, should not have been certified. It was not determinative of issue because, as application judge found, Board did consider adequacy of state protection. First certified question arose from application judge’s incorrect interpretation of current jurisprudence as potentially imposing onus on Board to demonstrate operational adequacy of recent measures adopted by Hungary to protect Roma citizens. Cases did not stand for that principle. Question was somewhat theoretical and more in nature of reference, which was prohibited. It was also not of general importance because law on this issue was well settled. Second question, whether refugee protection claims were required to complain to policing oversight agencies in democratic state as requirement of assessing state protection, also should not have been certified. Requirement of going to oversight agency in specific country was heavily fact driven and so was not of general application. There was no legal question to be answered. Board’s reasons pertaining to oversight agencies were obiter dicta because there was finding of fact that police’s response was adequate, and so certified question did not arise in this case. Certified questions did not comply with requirements of s. 74 of Immigration and Refugee Protection Act (Can.).
Mudrak v. Canada (Minister of Citizenship and Immigration) (June 14, 2016, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., A-147-15) Decision at 249 A.C.W.S. (3d) 848 was affirmed. 268 A.C.W.S. (3d) 408.


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