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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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Pensions

Federal and provincial pension plans

Federal pension plans

Minister not entitled to judicial review of Social Security Tribunal - Appeal Division’s reasons

Pension claimant JT injured her wrist in 2007 and worked sporadically until August 2008 when she was no longer able to work. Social Security Tribunal–General Division determined that claimant was eligible for disability pension under Canada Pension Plan because disability was severe and prolonged as of minimum qualifying period. Social Security Tribunal–Appeal Division granted Minister of Employment and Social Development leave to appeal on ground that General Division may have erred in finding that disability was severe, but did not grant leave on other two arguments. Minister brought application for judicial review, seeking to have appeal proceed on all three arguments. Application dismissed. Minister alleged three distinct erroneous findings but they all fell within just one ground of appeal recognized by statute. Minister was seeking judicial review of Appeal Division’s reasons, not its disposition. Appeal Division referred to other issues as “grounds” and found they did not have reasonable chance of success, but to refer to all instances of error as “grounds” was problematic. Language of statute was clear that there were only three possible grounds of appeal and that appeal was either granted or refused. Since Minister was not seeking different disposition, Minister had no basis upon which to bring judicial review application prior to completion of appeal proceedings. Appeal Division was specialized tribunal with expertise to interpret scope of its own appeal jurisdiction and statute. There was no reason to interfere with Appeal Division’s finding on issue of capacity to work and severity of disability. Appeal Division’s determination of factual issues raised by Minister was reasonable.
Canada (Attorney General) v. Tsagbey (2017), 2017 CarswellNat 1310, 2017 FC 356, Richard G. Mosley J. (F.C.).

Business Associations

Legal proceedings involving business associations

Practice and procedure in proceedings involving corporations

Corporate veil lifted to execute default judgment

Court issued default judgment against corporate third party carrying on business as “jbloom”, on ex parte motion brought by plaintiff A Corp.. Corporate third party brought motion seeking various types of relief in relation to execution of Writ of Seizure and Sale that was issued by court. Among other things, corporate third party sought to have execution of Writ set aside and nullified, and to have itself declared as sole owner of goods that were seized. Motion dismissed. Corporate third party’s corporate veil was lifted to permit A Corp. to execute Default Judgment against corporate third party. Bringing of this motion by corporate third party, after having been party to deliberate and improper actions taken by its principals, JN and JPN, to evade enforcement of Default Judgment, was outrageous and reprehensible. JN and JPN were at all relevant times the directing minds of both numbered companies. Together with numbered companies, they deliberately and flagrantly attempted to evade A Corp.’s enforcement of Default Judgment by liquidating assets of 9153 and transferring jbloom business to 9279, in an attempt to avoid 9153’s liability for the damages and costs awards set forth in paragraph 5 of Default Judgment.
ASICS Corp. v. 9153-2267 Québec Inc. (2017), 2017 CarswellNat 622, 2017 FC 257, Paul S. Crampton C.J. (F.C.).

Immigration and Citizenship

Refugee protection

Elements of protected refugee status

Refugee claim denied where motive was economic, not ethnic

Principal applicant and minor applicants were ethnic Chinese citizens of Guyana and claimed fear of persecution on basis of their race. Applicants fled Guyana and unsuccessfully claimed refugee status in Canada. Applicants appealed decision to refugee appeal division (RAD), which confirmed decision. Applicants brought application for judicial review. Application dismissed. RAD conducted its own analysis of documentary evidence. RAD’s conclusions from review of documentary evidence were within range of possible, acceptable outcomes. RAD reviewed evidence and reached conclusion that motive was economic, not ethnic. Evidence in present case differed significantly from that in other case law.
Su v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 681, 2017 FC 243, Richard F. Southcott J. (F.C.).

Immigration and Citizenship

Exclusion and removal

Removal from Canada

Refugee given meaningful opportunity to participate in process

Refugee was citizen of Nicaragua who had voluntarily joined youth wing of Frente Sandanista de Liberacion Nacional (FSLN) in 1978 or 1979. In 1980 or 1981, refugee joined FSLN’s armed force, Ejercito Popular Sandinista (EPS), and performed activities in conjunction with Military Police Special Forces Branch. Refugee claimed much of her participation was coerced and that she was subjected to several threats and assassination attempts because of her knowledge of EPS’ activities. Refugee came to Canada in 1993 and was determined to be Convention refugee. Immigration officer later determined refugee was inadmissible to Canada because of her past membership in FSLN, which was believed to have engaged in terrorism. Refugee unsuccessfully applied for ministerial relief. Refugee brought application for judicial review. Application dismissed. Refugee had not established that she was treated unfairly in ministerial relief process, nor that decision of Minister of Public Safety and Emergency Preparedness was unreasonable. Refugee had clearly been given meaningful opportunity to participate in minister’s decision-making process and had been provided with multiple extensions of time to respond to draft recommendation of President of Canada Border Services Agency (CBSA). There was no evidence that refugee was prejudiced in any way by being forced to provide response to draft recommendation of President of CBSA before she had received response from CBSA with respect to access to information request. At end of day, refugee sought to have court re-weigh evidence that was before minister and come to different result, but that was not role of court sitting in review of ministerial decision.
Steves v. Canada (Minister of Public Safety and Emergency Preparedness) (2017), 2017 CarswellNat 621, 2017 FC 247, Anne L. Mactavish J. (F.C.).

Pensions

Federal and provincial pension plans

Federal pension plans

Application for disability pension dismissed

Disability pension applicant claimed he was no longer able to work as mason after motor vehicle accident in 2008. Applicant provided some administrative services to his company until company went bankrupt in 2011 and performed some work in 2012. Applicant’s application for disability pension under Canada Pension Plan was dismissed. Social Security Tribunal-General Division (SST-GD) dismissed applicant’s appeal on basis that he did not establish that he suffered from severe disability because he had capacity to work. Social Security Tribunal-Appeal Division (SST-AD) dismissed applicant’s application for leave to appeal. Applicant brought application for judicial review. Application dismissed. Evidence established that applicant suffered injuries in 2008 motor vehicle accident and injuries impacted his work capacity in physically demanding occupation. SST-GD reasonably concluded that applicant possessed transferable work skills, retained capacity to work, had continued to work until 2012 in modified role, and ceased to work because he was not offered more work. SST-GD had no duty to request further medical information from applicant. It was not unreasonable for SST-AD to conclude that there was no reasonable chance of success on appeal and that arguments repeated submissions made before SST-GD. SST-AD did not err in refusing to consider new evidence in support of application for leave. Bald allegation of ineffective assistance of counsel could not succeed. Recognizing strong presumption in favour of adequate representation and requirement to establish actual prejudice, applicant failed to demonstrate any basis justifying intervention.
Glover v. Canada (Attorney General) (2017), 2017 CarswellNat 1890, 2017 FC 363, Patrick Gleeson J. (F.C.).

Law Enforcement Agencies

Particular police and security forces

Canadian Security Intelligence Service

Canadian Security Intelligence Service human source privilege not applicable to designated judge

Issue arose as to proper procedure to be followed when government claimed privilege pursuant to s. 18.1 of Canadian Security Intelligence Service Act (CSIS Act) applied to in camera ex parte proceeding. As result of Federal Court of Appeal decision, class privilege applied to facts involving CSIS human source. At issue was whether redacted information produced may be viewed in un-redacted form by designated judge. Purposes of privilege set out in s. 18.1 of CSIS Act were to ensure that identity of CSIS human sources remained confidential to protect their life and security, and to encourage individuals to provide information to CSIS. In any proceeding before court, disclosure of identity of CSIS human source or any information from which identity of CSIS human source may be identified was forbidden, but order could be sought declaring that individual was not CSIS human source or that information sought did not identify CSIS human source or that identity of CSIS human source was essential to establishing innocence of accused. CSIS human source privilege of s. 18.1 of CSIS Act was not applicable to designated judge. Section 38.01(6)(d) of Canada Evidence Act was strong indicator that Parliament expected designated judge to receive extremely sensitive national security information, as designated judge was excluded from ambit of s. 38 scheme which prohibited disclosure of sensitive information. As part of overarching judicial duties to ensure proper administration of justice and fairness in ex parte, in camera proceedings, designated judge could raise and address disclosure without application triggered by specified persons. Designated judge could receive disclosure of un-redacted information because judge was not counsel for government’s litigation opponent within scope of meaning of disclosure in s. 18.1(2) of CSIS Act. Section 18.1 of CSIS Act must be interpreted in manner that allowed designated judge to perform his or her duties as independent adjudicator, and designated judge must be provided un-redacted information in order to determine whether privilege existed or if any exceptions applied. Parliament generally explicitly stated in law when it intended that judges were to be prohibited from examining information to determine whether claim of privilege was valid or to verify fact related to CSIS human source. CSIS had elevated duty of candour toward designated judges presiding over ex parte, in camera hearings, and consequences of strictly and literally interpreting s. 18.1 of CSIS human source privilege would significantly impact ability of designated judge to ensure fairness and proper administration of justice. Strict and literal interpretation of s. 18.1 of CSIS Act was rejected, and based on reading of CSIS Act as whole and in practical context in which it was applied, CSIS human source privilege could not be applicable to designated judge. Legislator did not intend to restrict designated judge’s ability to properly fulfil duties of ensuring fairness and maintaining proper administration of justice by limiting power to question and address appropriateness of communicated information over course of ex parte, in camera proceedings.
Unnamed Person, Re (2017), 2017 CarswellNat 1301, 2017 CarswellNat 1302, 2017 FC 136, 2017 CF 136, Simon Noël J. (F.C.).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Complainant’s allegation of personal harassment substantiated but not allegation of racial discrimination

Fairness. 40-year-old applicant was of Iranian descent and was long-term employee of respondent. Applicant made complaint to respondent that he was being harassed by supervisor, and respondent found supervisor engaged in hostile and unprofessional behaviour, and required him to attend leadership training. Applicant filed second complaint that supervisor ignored him, demeaned him, and made him feel incompetent. Respondent investigated and concluded applicant’s allegation of personal harassment was substantiated but there was no racial discrimination, facilitated apology and discussion, and ultimately terminated supervisor’s employment when his behaviour did not improve. Applicant made complaint to human rights commission that he was discriminated against based on race, ethnic origin and age, and that respondent treated him in adverse manner and failed to provide harassment-free workplace. Investigation was conducted and commission found further inquiry into complaint was not warranted. Applicant brought application for judicial review of decision dismissing his compliant. Application dismissed. There was no evidence on record supporting applicant’s allegation investigator was biased and prejudged issue, and applicant never raised contention of bias earlier, so could not do so now. Investigator refused to review audio recordings of conversations with witnesses, on basis there was no way to authenticate voices and context. This rationale was not reasonable, as applicant could have provided context and identified voices, and investigator could have spoken to identified individuals. Tapes were not obviously critical evidence, as they were very brief and applicant summarized them in his submissions. Investigator did not interview two witnesses identified by applicant because existence of harassment was not at issue, and applicant did not identify other evidence they could have provided. Applicant was able to make submissions and arguments to commission, and there was no unfairness and no investigative flaws so fundamental they could not be remedied by his submissions.
Majidigoruh v. Jazz Aviation LP (2017), 2017 CarswellNat 887, 2017 FC 295, Anne L. Mactavish J. (F.C.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
Yes, this will remind trustees of the potential exposure of significant awards being made against them personally.
No, it’s unlikely this ruling will dissuade executors from engaging in unreasonable conduct during litigation.