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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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Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Commission’s decision was not unreasonable

Complainant alleged that she had been subject to harassment and discrimination on basis of race, national or ethnic origin, and colour in course of her employment with respondent. Investigator concluded that harassment likely did not occur. Canadian Human Rights Commission dismissed complaint, finding that evidence before it did not support complainant’s allegations against her employer and that further inquiry was not warranted. Complainant’s application for judicial review was dismissed. Federal Court judge found that investigator adequately identified various allegations made by complainant and that evidence was insufficient to support them. Judge reviewed both investigator’s report and Commission’s decision, and determined that investigator did not deny complainant procedural fairness and that her allegations were without merit. Judge further found that Commission’s decision was not unreasonable in light of evidence gathered by investigator. Appeal by complainant dismissed. Judge made no reviewable error either in respect of procedural fairness issue or with regard to reasonableness of Commission’s decision. Investigator concluded that complainant had not provided any evidence to support her allegation that she had been treated in differential manner by her three supervisors; and similarly, that she did not provide any evidence to support allegation that she was not provided with harassment-free environment.
Miakanda-Batsika v. Bell Canada (2016), 2016 CarswellNat 5905, 2016 CarswellNat 5906, 2016 FCA 278, 2016 CAF 278, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 6482, 2014 CarswellNat 6483, 2014 FC 840, 2014 CF 840, George R. Locke J. (F.C.).

Environmental Law

Statutory protection of environment


Trial judge properly considered applicability of privilege

Parties were involved in proceedings under Environmental Protection Act, 1999. Informant in proceedings sought protection of identity under s. 16(2) of Act. At hearing regarding production, order issued which exempted from disclosure any information that might reasonably identify person who applied for investigation. Numbered company appealed. Appeal dismissed. Trial judge properly considered issue of applicability of privilege. Federal Court did not effectively read class privilege of s. 16 into scheme of s. 17 to 21 of Act. Person who believes that investigation should be initiated under s. 17 of Act may also require and request protections afforded by section 16.
876947 Ontario Ltd. v. Canada (Attorney General) (2016), 2016 CarswellNat 5708, 2016 FCA 270, 2016 FC 432, Eleanor R. Dawson J.A., Near J.A., and Woods J.A. (F.C.A.).

Administrative Law

Prerogative remedies


Filing of notice of application was premature

Applicant filed notice of application seeking stay of certain administrative proceedings before Canadian Transportation Agency. Applicant did not ask agency to suspend proceedings, and instead relied on s. 50 of Federal Courts Act to come directly to court. This was ruling, as requested by registry, on whether notice of application should be removed from court file and file ordered closed. Pursuant to authority under R. 74.1 of Federal Court Rules, notice of application was ordered removed from court file and file was ordered closed. Applicant was actually seeking prohibition of administrative proceedings, so standards had to be same. Prohibition was administrative law remedy not to be pursued where there was adequate alternative remedy and lack of extraordinary circumstances or unusual urgency, so same requirements applied here. Canadian Transportation Act gave agency full power over its proceedings, including determining whether to suspend or adjourn proceedings. To allow applicant to bypass agency and go directly to court would offend statutory scheme. Notice of application revealed no unusual urgency or exceptional reason that immediate access to court was necessary. Filing of notice of application was premature and thus contrary to Canada Transportation Act. Decision was without prejudice to applicant’s ability to bring motion for stay of pending appeal of interlocutory decision for which applicant had applied for leave to appeal.
Canadian National Railway v. BNSF Railway (2016), 2016 CarswellNat 5738, 2016 FCA 284, David Stratas J.A. (F.C.A.).



Federal regulatory boards

There was no basis to interfere with agency’s determination

Canada Transportation Act provided for maximum revenue entitlements (MREs) for movement of western grain by prescribed railway companies. Sections 150 and 151 of Act provided for assessment of MREs by Canadian Transportation Agency for each crop year. Agency’s approach to calculating MREs had been disadvantageous to railway since 2001. Agency’s MRE determination for railway for 2013-2014 crop year resulted in railway being required to pay $4,981,915 that it received in excess of its MRE, plus $249,096 penalty, to Western Grains Research Foundation. Agency changed its approach to calculating MREs starting in 2014-2015 crop year. Railway appealed from MRE determination for 2013-2014 crop year. Appeal dismissed. Railway failed to establish agency’s interpretation and application of Act were unreasonable. Despite fact that agency’s interpretation and application of Act had withstood court’s scrutiny in past, counsel for railway devoted significant time to this issue. There was no convincing basis given to interfere with agency’s determination. Agency’s interpretation and application of its own statute was possible and acceptable outcome in light of facts and law. Railway failed to establish any violation of procedural fairness in agency’s consultation process and in agency not considering in its MRE determination railway’s late submission made in that consultation process.
Canadian National Railway v. Canadian Transportation Agency (2016), 2016 CarswellNat 5676, 2016 FCA 266, Johanne Trudel J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.).

Environmental Law

Statutory protection of environment

Environmental assessment

Environmental Protection Act conferred significant discretion on Minister

Genetically engineered organisms. Biotechnology company A Inc. owned rights to genetically engineered Atlantic salmon which grew to market size significantly more rapidly than wild or farmed salmon. A Inc. proposed to produce sterile, all-female salmon eggs for export to facility in Panama. Ministers of Environment and Health determined A Inc.’s salmon was not toxic or capable of becoming toxic and granted A Inc. waiver from obligation to provide certain information under Environmental Protection Act. Minister of Environment issued notice in Canada Gazette indicating scope of activities permitted and advising that any other activities would require separate consideration. Federal Court dismissed public interest group’s application for judicial review. Federal Court determined that Ministers’ decisions were made in manner prescribed by Act and were reasonable, that Ministers reasonably decided A Inc.’s salmon was not toxic or capable of becoming toxic, and that Ministers considered information with respect to potential uses and locations of introduction of A Inc.’s salmon. Federal Court held that publication of notice of waiver occurred within reasonable time, that Act did not provide for public participation in toxicity assessments, that Minister of Environment’s publication of notice of permitted activities was reasonable, that Notice was not overbroad, and that anyone seeking to engage in same activities in another location would still have to file notice and undergo new assessment. Public interest group appealed. Appeal dismissed. Federal Court committed no error warranting court’s intervention. Act conferred significant discretion on Minister and decision was entitled to deference. Group failed to show it was unreasonable for Minister to conclude that potential for exposure to environment could be prevented. Scope of SNAc Notice could not be said to be overly broad or unreasonable. There was no absurdity or unreasonableness in Minister issuing SNAc Notice permitting wider range of uses of AAS than that permitted by s. 106(10). Finally, Federal Court did not breach duty of procedural fairness by arriving at own interpretation of legislation. Procedural fairness required that parties be able to make submissions about issues of statutory interpretation, but court’s ability to decide issues correctly was not constrained by parties’ submissions.
Ecology Action Centre v. Canada (Minister of the Environment and Climate Change) (2016), 2016 CarswellNat 5289, 2016 FCA 258, Nadon J.A., Eleanor R. Dawson J.A., and Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 10968, 2015 CarswellNat 7756, 2015 FC 1412, 2015 CF 1412, Russel W. Zinn J. (F.C.).


Income tax

Administration and enforcement

Court held that taxpayers had been grossly negligent

Taxpayers were husband and wife, respectively retired draftsperson and employed administrative assistant, who went to R for tax preparation. Taxpayers met R, who was not affiliated with any established tax preparers, in coffee shop rather than professional office and he only charged $45 per return. R convinced taxpayers to make charitable donations through program with inflated gift receipts and to participate in investment program, in two taxation years. CRA challenged results of such participation. Taxpayers filed income tax returns for year in question, claiming business income, expenses, and losses and requesting loss carryback. Minister reassessed taxpayers under Income Tax Act, disallowing claimed business losses and applying gross negligence penalties. Taxpayers’ appeal with respect to imposition of penalties was dismissed. Tax Court judge concluded that taxpayers were not so lacking in education or experience as to claim ignorance and that warning signs about R’s professional status and his questionable prior dealing of schemes attracting CRA attention should have motivated them to inquire further. Taxpayers appealed. Appeal dismissed. Taxpayers did not demonstrate any error in Tax Court judge’s analysis of governing legal principles and appreciation of evidence. There was ample evidentiary foundation to support Tax Court judge’s conclusion of gross negligence. Tax Court judge concluded that taxpayers made no effort to verify accuracy and completeness of their returns, simply signing their returns without even examining them in circumstances where they should have been on notice that something was amiss. Tax Court judge concluded that, had taxpayers made most minimal effort, they would have easily noticed utterly false information contained in their returns. Conclusion that taxpayers had been grossly negligent could not be disturbed.
Maynard v. R. (2016), 2016 CarswellNat 5331, 2016 FCA 251, Donald J. Rennie J.A., Nadon J.A., and Stratas J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 214, 2016 TCC 21, Rommel G. Masse D.J. (T.C.C.).

Labour and Employment Law

Labour law

Discipline and termination

Employer’s application for judicial review was dismissed

Employer dismissed worker for committing violent act in workplace. Worker’s grievance for wrongful dismissal was granted and dismissal was annulled. Worker’s misconduct merited severe penalty but employer failed to account for worker’s medical state and as such, employer’s behaviour constituted discriminatory act. Employer brought application for judicial review. Application dismissed. Commissioner did not break rules of procedural fairness. Commissioner did not err in concluding there was provocation. Even if commissioner could not take into account “some provocation”, decision was based on other mitigating factors supported by evidence on record. Given discrimination, commissioner did not err in concluding that ground of discrimination needed not be only factor in dismissal; that grounds of discrimination simply needed to be one factor. Evidence showed that employer was well aware of worker’s health condition. Decision of commissioner did not establish that employer could not terminate employee who committed violent acts; rather decision of commissioner showed that termination of employee could not be taken without consideration of offending employee’s health status.
Canada (Procureur général) c. Rahmani (2016), 2016 CarswellNat 5330, 2016 CAF 249, Gauthier J.A., Boivin J.A., and Yves de Montigny J.A. (F.C.A.); application for judicial review refused (2016), 2016 CarswellNat 460, 2016 CarswellNat 461, 2016 PSLREB 10, 2016 CRTEFP 10, Marie-Claire Perrault Member (Can. P.S.L.R.E.B.).

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A Law Times column examines whether the Law Society of Upper Canada should change its name to the Law Society of Ontario, in light of different social changes, such as the Truth and Reconciliation Committee’s Calls to Action. Should LSUC change its name?
Yes, it’s time for LSUC to catch up with the times, and update its name.
No, the name of the LSUC is appropriate, and changing it would not accomplish much.