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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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Constitutional Law

Charter of Rights

Assessment tools administered to Aboriginal inmates breached ss. 7 and 15 of Charter

Defendant Correctional Service of Canada (CSC) used certain psychological tests or assessment tools to assess risk of criminal recidivism and psychopathy in inmates, which impacted institutional decisions such as those relating to parole eligibility and security classifications. Plaintiff Aboriginal inmate brought action against CSC and wardens of institutions, alleging that assessment tools were unreliable when administered to Aboriginal inmates such that their use breached his rights, including under ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Action was allowed on basis that CSC’s use of assessment tools breached s. 7 of Charter and s. 24(1) of Corrections and Conditional Release Act (Can.), with issuance of interim relief while remedy hearing was set to determine terms of final order. Defendants appealed. Appeal allowed. Trial judge did not expressly consider whether plaintiff established on balance of probabilities that scores and conclusions generated by assessment tools were inaccurate and unreliable when assessment tools were administered to Aboriginal persons. Trial judge relied on expert testimony that there was no evidence that scores and conclusions predicted recidivism in Aboriginal offenders as accurately as they did when administered to non-Aboriginal offenders. By relying on absence of evidence proving reliability of assessment tools, trial judge erred in law by failing to require plaintiff to establish his claim on balance of probabilities. Expert evidence was, as matter of law, insufficient to establish that assessment tools generated results that were inaccurate or unreliable in material way. Trial judge erred by failing to conclude that plaintiff failed to establish violation of his rights under s. 7 of Charter on balance of probabilities.
Canada (Commissioner of Correctional Service) v. Ewert (Aug. 3, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., A-421-15) Decision at 258 A.C.W.S. (3d) 320 was reversed. 269 A.C.W.S. (3d) 686.

Civil Procedure


Plaintiff’s acceptance of defendants’ offer was unconditional

Plaintiff sued defendants with respect to trademark issues arising from use of word Pinnacle in connection with sale of alcoholic beverages. Defendants made offer to settle pursuant to which claim and counterclaim in Federal Court action would be discontinued with each party to bear its own costs. Offer was accepted but dispute arose as to whether offer also included discontinuance of Superior Court action. Each party brought motion seeking to have its position ratified. Federal Court judge concluded that there was settlement of Federal Court action and counterclaim but that Superior Court action was not settled. Permanent stay of proceedings was ordered with respect to defendants’ counterclaim. Defendants appealed. Appeal dismissed. Federal Court judge did not make any error that could justify intervention. Arguments resting on notion that defendants intended to make offer to settle which included Superior Court action could not succeed. Words of offer to settle were unambiguous while evidence of surrounding circumstances including operation of R. 420 of Federal Courts Rules (Can.), did not support defendants’ position. Defendants’ settlement offer was intended to satisfy conditions of R. 420 and as result it dealt only with Federal Court action. Plaintiff’s acceptance of defendants’ offer was unconditional.
Beam Suntory Inc. v. Domaines Pinnacle Inc. (Aug. 31, 2016, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A., A-272-15) Decision at 254 A.C.W.S. (3d) 802 was affirmed. 269 A.C.W.S. (3d) 662.

Environmental Law


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.



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.



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.

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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.