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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.).

Civil Practice and Procedure

Class and representative proceedings

Common question in original order was restored

Plaintiff brought motion to certify as class proceeding action relating to denial of sickness benefits under Employment Insurance Act to individuals who were receiving parental benefits under Act when they became ill. Judge certified class proceeding for negligent implementation of Act in original order. Attorney General of Canada and Canada Employment Insurance Commission brought motion for reconsideration of original order. Motion was granted and amendments were made in amending order. Plaintiff appealed amendment in amending order that deleted common question that asked whether defendants who owed duty breached that duty of care. Appeal allowed. Common question in original order was restored. Certification judge certified question of whether Commission or Service Canada owed duty of care in administering Act and if so, content of duty and which defendant owed duty despite her statement that it would require individual assessment to determine who owed duty. It could not be said that manifest intention of certification judge was not to certify subject question related to whether Commission or Service Canada, who would have been found to have owed duty as result of earlier common questions, breached that duty. This common question was conditional, directly and indirectly, on other questions that had been certified. It was not clerical error or mistake to include this common question in original order.
McCrea v. Canada (Attorney General) (2016), 2016 CarswellNat 5814, 2016 FCA 285, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.).

Criminal Law

Extraordinary remedies

Application for judicial review was dismissed

Conviction review. Applicant was convicted of first degree murder, after son, son’s then-wife, and another witness testified that they saw applicant kill deceased. Applicant applied for conviction review on basis of son’s later confession that he murdered deceased. Criminal Conviction Review Group concluded on preliminary assessment that son’s confession was not reasonably capable of belief. Group, acting as delegate for Minister of Justice, found that there was no new and significant evidence providing reasonable basis to conclude that miscarriage of justice likely occurred and decided not to proceed to investigative stage of review process. In reconsideration decision after alleged inconsistencies were raised with respect to wife’s current recollection, Group refused to compel wife’s examination and cross-examination under oath. Applicant’s application for judicial review was dismissed. Applicant appealed. Appeal dismissed. Minister followed methodology appropriate to purposes of legislative framework during preliminary assessment phase, carefully considering information offered in support of application. Minister went further, interviewing wife as witness to crime but declining to investigate further or to examine her under oath. Minister had firm evidentiary basis for decision that confession was not reasonable basis for concluding miscarriage of justice likely occurred. At applicant’s trial, jury had cellblock confession by son to murder, supported by motive, but still found that applicant was murderer. Minister could not find independent corroborating evidence demonstrating that son committed murder, as opposed to making confessions Minister had acceptable and defensible basis for conclusion. Minister’s failure to disclose note detailing interview with wife did not work procedural fairness because it was not material and did not support need for further exploration of matter, as wife confirmed her earlier testimony that applicant committed killing. Legislative standards permitted Minister to take into account credibility of information, such as son’s confession, supporting application.
Winmill v. Canada (Minister of Justice) (2016), 2016 CarswellNat 5309, 2016 FCA 250, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2146, 2015 CarswellNat 6014, 2015 FC 710, 2015 CF 710, René LeBlanc J. (F.C.).

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