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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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Criminal Law

PRISONS

Minister did not consider competing factors regarding public safety on transfer application

Applicant was Canadian citizen incarcerated in Ohio. Applicant pleaded guilty and was sentenced to 10 years for attempting enticement of minor to engage in sexual activity. Applicant had moved to United States to pursue relationship with American citizen who was now his ex-wife. Applicant had brother and sister in Canada. Applicant applied for transfer to Canada to serve remainder of sentence. Respondent minister denied applicant’s request for transfer of sentence pursuant to International Transfer of Offenders Act. Minister found that transfer would not contribute to administration of justice, including public safety, in Canada or to applicant’s effective reintegration into community. Applicant applied for judicial review. Application granted. Standard of review was reasonableness. Minister’s decision appeared to rely on community assessment report and did not consider clearly competing factors outlined in memorandum to minister and Correctional Service Canada summary. Minister stated transfer would not contribute to public safety but there was clear evidence to contrary. Minister did not consider contrary position that public safety in Canada might be enhanced by applicant’s transfer. There was no weighing of evidence. Correctional Service Canada summary and memorandum did not contain statement regarding rehabilitation programs available to applicant in United States. There was lack of consideration of competing factors by minister and it was not clear how he arrived at decision and why strong evidence in favour of transfer was rejected. Some of minister’s findings were directly contradictory to what was stated in memorandum and summary. Minister must engage in process of considering and weighing of evidence. Application was remitted to minister for reconsideration.
Tosti v. Canada (Minister of Public Safety and Emergency Preparedness) (Jun. 12, 2015, F.C., Glennys L. McVeigh J., File No. T-2132-13) 256 A.C.W.S. (3d) 104.

Employment

OCCUPATIONAL HEALTH AND SAFETY

Open to appeals officer to find level of participation and co-operation insufficient to satisfy duties under Canada Labour Code

In 2004, respondent union became collective bargaining agent for applicant’s rural and suburban mail carriers. Shortly thereafter, complaints were made in respect of safety of delivery to rural mailboxes. In 2006, applicant engaged National Research Council to develop tool to assess safety of rural mailbox delivery and retained consultant to develop traffic safety assessment tool. Union was consulted in development of safety assessment tool. In September 2007, complaint was made to Human Resources and Skills Development Canada alleging that applicant had failed to include National Joint Health and Safety Committee, Local Joint Health and Safety Committee or Health and Safety Representatives in onsite traffic safety assessment tool inspection of rural mailboxes and did not provide National Joint Health and Safety Committee with complete information about safety assessments. Health and Safety Officer found that applicant had violated s. 125(1)(z.11) and s. 125(1)(z.19) of Canada Labour Code, but not ss. 137(e) or 136(5)(g). Union appealed. Appeals officer found that, in addition to directions issued by Health and Safety Officer, applicant had also violated ss. 135(7)(e) and 136(5)(g) of code by not permitting Local Joint Health and Safety Committee and Health and Safety Representatives to participate in assessments in accordance with their legal obligation to do so under code. Appeals officer concluded traffic safety assessment tool assessment was inspection and that it pertained to health and safety of employees within meaning of code. Applicant applied for judicial review of decision of appeals officer. Application dismissed. Physical presence of Local Joint Health and Safety Committee and Health and Safety Representatives was required in onsite investigation to allow those parties to fulfill their mandate as set out in ss. 135(7)(e) and 136(5)(g) of code. Appeals officer was person authorized to make finding as to meaning and requirements of “participate” on basis of evidence submitted. Appeals officer’s assessment of evidence was reasonable. It was open to him to find, based on totality of evidence before him, that level of participation and co-operation was not sufficient to satisfy duties under code.
Canada Post Corp. v. CUPW (May. 26, 2015, F.C., E. Heneghan J., File No. T-1498-13) 255 A.C.W.S. (3d) 111.

Crown

ACTIONS AGAINST CROWN

It was premature to say matter was not justiciable

In December 2014, Prime Minister was said to have publicly communicated his decision not to advise Governor General to fill existing vacancies in Senate. Applicant, who was Vancouver lawyer, considered “decision” illegal. He applied for judicial review of Prime Minister’s decision. Applicant sought declaration that Prime Minister must call upon Governor General to appoint his nominees to Senate within reasonable time after vacancy occurred. Deputy Attorney General brought motion for order that application for judicial review be struck at outset, before it was heard on merits. Deputy Attorney General submitted it was plain and obvious that application was bereft of any chance of success. Motion dismissed. It was not plain and obvious that applicant had no chance of success. Existence and scope of any constitutional convention whereby Governor General would only fill vacancies in Senate on advice of Prime Minister had not been established. Nor had it been established that decision was grounded on valid constitutional convention. It was premature to say matter was not justiciable. If it was merely matter of interpreting statute, and it was not plain and obvious that it was not, then certainly matter was justiciable.
Alani v. Canada (Prime Minister) (May. 21, 2015, F.C., Sean Harrington J., File No. T-2506-14) 255 A.C.W.S. (3d) 99.

Constitutional Law

CHARTER OF RIGHTS

Section 110(2)(d.1) of Immigration and Refugee Protection Act violates s. 15(1) of Charter

Section 110(2)(d.1) of the Immigration and Refugee Protection Act denies access to Refugee Appeal Division for all refugee claimants from any country designated by Minister of Citizenship and Immigration. Applicants challenged constitutionality of s. 110(2)(d.1) and mechanism for selecting which countries to designate, arguing that denying refugee claimants from designated countries of origin an appeal to refugee appeal division violates ss. 7 and 15(1) of Canadian Charter of Rights and Freedoms. Primary applicants are refugee claimants from designated countries of origin. Appeal division rejected applicants’ claims on basis there was adequate state protection. Constitutional challenge brought by way of appeal to appeal division. Appeal division dismissed appeals on basis it did not have jurisdiction by virtue of s. 110(2)(d.1). Applicants applied for judicial review. One of principal goals of designated country of origin regime was to deter abuse while preserving right of eligible refugee claimants to have fair hearing. Designated country of origin claimants face several differential procedures, including delayed work permit eligibility and pre-removal risk assessment, different time limits, lack of appeal to appeal division, removal orders coming into force sooner and no automatic stay of removal when seeking judicial review. Differential treatment is clearly distinction on basis of national origin as it is made without regard to personal characteristics of claimants or whether that designated country of origin is actually safe for them; it is discriminatory on its face and serves to further marginalize, prejudice and stereotype refugee claimants from designated countries of origin. Introduction of s. 110(2)(d.1) has deprived refugee claimants from designated countries of origin of substantive equality. Access to appeal division is substantial benefit being denied to claimants from designated countries of origin. Section 110(2)(d.1) of act violates s. 15(1) of Charter. Denial of appeal to appeal division for designated country of origin claimant is not reasonable limit prescribed by law that can be demonstrably justified in free and democratic society. While denial of appeal to appeal division by designated country of origin refugee claimants is prescribed by law and Canada had pressing and substantial objective in effecting immigration reform, s. 110(2)(d.1) is not minimally impairing. Respondents did not prove that absolute bar is least drastic means by which it could satisfy objectives. Denying appeal to appeal division to some claimants based on country of origin is serious impairment of right to equality. Section 110(2)(d.1) inconsistent with s. 15(1) of Charter and has no force and effect.
Z. (Y.) v. Canada (Minister of Citizenship and Immigration) (Jul. 23, 2015, F.C., Keith M. Boswell J., File No. IMM-3700-13, IMM-5940-14) 255 A.C.W.S. (3d) 958.

Immigration

Judicial review

Even if refugee appeal division had applied appropriate standard of review, conclusions it reached were not reasonable

Main applicant and two children, minor applicants, were citizens of Republic of Nigeria. Main applicant was sold into slavery at age 11 to J and she was physically and sexually assaulted by J’s son I who was father of minor applicants and third child born in Canada. I wanted custody of children but he could only get custody if he married main applicant or she was dead and he would not marry her because she was slave. Main applicant left Nigeria for fear that J and I would locate her and kill her in order to gain custody of minor applicants. Main applicant claimed that minor female applicant was at risk of female genital mutilation. Applicants’ claim for refugee protection was rejected by refugee protection division on basis that there was internal flight alternative in Nigeria. Applicant appealed. Refugee appeal division dismissed appeal. Applicants applied for judicial review. Application granted. Appeal division determined that standard of review was correctness but it conducted analysis of merits of appeal using standard of reasonableness. Appeal division did not conduct appeal on standard of correctness, which was error that was sufficient to grant application. Even if appeal division had applied appropriate standard of review, conclusions it reached were not reasonable.
Ezedunor v. Canada (Minister of Citizenship and Immigration) (Jun. 24, 2015, F.C., Russel W. Zinn J., File No. IMM-5186-14) 255 A.C.W.S. (3d) 689.

Air Law

Licences

Risk to air safety outweighed individual benefit to student pilot to receive licence

Student pilot was physician who suffered from obsessive compulsive disorder and significant associated generalized anxiety disorder. Student pilot had been taking prescription medications for these conditions since at least 2004, and these conditions were well controlled. Student pilot took up flying for recreational purposes in 2012. Student pilot completed certain courses and training but was denied civil aviation licence by minister of transport. Denial was based on student pilot being treated with four medications. Student pilot unsuccessfully applied for review by one-member panel of Transportation Appeal Tribunal. Student pilot unsuccessfully appealed to three-member panel. Student pilot brought application for judicial review. Application dismissed. Standard of review was reasonableness, with deference to expertise of tribunal. Issue in this case was whether tribunal’s decision reasonably, in its result, reflected proportionate exercise as between objectives of Aeronautics Act on one hand and Canadian Charter of Rights and Freedoms and Canadian Human Rights Act on other hand. Tribunal’s decision was reasonable and had adequately taken into consideration student pilot’s rights afforded by Charter and act. Minister’s medical evidence was to effect that, while one could not say for certain, larger number of drugs being taken required more caution as to their effect, particularly with respect to sedating drugs. Tribunal was to consider issue having regard to its expertise and concern for air safety. Conclusion reached by tribunal was that risk to air safety outweighed individual benefit to student pilot to receive licence. Student pilot had option of changing one drug, but nothing indicated he had done so. In light of available evidence, student pilot failed to establish he had not received appropriate individual assessment.
Corneil v. Canada (Transportation Appeal Tribunal) (Jun. 16, 2015, F.C., Roger T. Hughes J., File No. T-31-15) 255 A.C.W.S. (3d) 530.

Constitutional Law

DISTRIBUTION OF LEGISLATIVE AUTHORITY

Nursing station fell under federal jurisdiction using functional test

Applicant was First Nation that operated its own nursing station. Respondent began working for applicant as clinic nurse at nursing station. Respondent’s contract was renewed multiple times but she was told that her contract would not be renewed when it expired. Respondent brought claim for unjust dismissal against applicant pursuant to Canada Labour Code. Adjudicator found that he had jurisdiction to hear respondent’s claim and awarded damages to respondent. Applicant applied for judicial review. Application dismissed. This was true question of jurisdiction to be reviewed on standard of correctness. Adjudicator’s decision that respondent’s complaint fell under federal jurisdiction and that he had jurisdiction to assess complaint merits was correct. Code applied in respect of employees who were employed on or in connection with operation of any federal work, undertaking or business. Canadian courts recognized that labour relations were presumptively provincial matter. Pursuant to s. 91(24) of Constitutions Act, 1867 (Can.), Parliament had exclusive jurisdiction over Indians and lands reserved for Indians. Question before adjudicator was whether nursing station was part of Band’s operations in respect of Indians and lands reserved for Indians or whether it was separate undertaking. Adjudicator correctly found that nursing station came under federal jurisdiction either directly or derivatively. Nursing Station was part of or integrally connected to Band and therefore subject to federal jurisdiction. Nursing Station was way in which applicant executed its mandate to provide healthcare services to residents and it was exercising power delegated to it by Parliament pursuant to Indian Act (Can.), which directly fell under federal jurisdiction. Adjudicator was correct in finding that he had jurisdiction to hear matter given that nursing station fell under federal jurisdiction using functional test. Nursing station was one of ways, if not most important way, in which applicant, federally regulated entity, fulfilled its mandate to provide healthcare to residents. Only provincial involvement was that nurses were provincially licensed and provincial government had no operational involvement with nursing station. Nursing station was part of applicant because it did not operate separate, distinct or autonomous unit and it fell directly under federal jurisdiction. Alternatively, nursing station was integral part of core federal undertaking that was applicant and fell derivatively under federal jurisdiction. Choice of law clause included by parties in employment contract confirmed that federal jurisdiction applied.
Berens River First Nation v. Gibson-Peron (May. 8, 2015, F.C., Cecily Y. Strickland J., File No. T-1933-14) 255 A.C.W.S. (3d) 471.   
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