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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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Opinion evidence

First Nations granted leave to file expert report and call expert as witness

First Nations commenced action against federal government in 1992 for relief for breach of fiduciary duty in making certain treaties in 1923. Federal government commenced third-party claim against provincial government. Parties engaged in negotiations until 2000. First Nations hired expert S to interview First Nations’ members to assist in identifying potential witnesses. Expert S interviewed 174 members of First Nations and began drafting expert report on First Nations’ oral history of treaties based on these interviews. Report was not completed, and First Nations indicated in 2007 that they would not rely on it. Expert passed away in 2012. Trial commenced some weeks later. First Nations’ oral history of events became relevant in 2013 when anomalies were discovered in original treaties. First Nations hired expert M to prepare expert report based on expert S’s work. First Nations brought motion for leave to file expert M’s report and to call him as expert witness. Motion granted on terms. Comprehensive order was made regarding conduct of trial, including how expert M’s evidence was to be addressed. First Nations’ oral narratives recorded by expert S and analysed by expert M constituted both oral history evidence and hearsay evidence on treaties. Expert M was anthropologist who could be expected to provide expert evidence in his field of expertise. Interviews might be hearsay, but expert M’s report was not. Expert M’s report was relevant and necessary. Preliminary findings about admissibility were not findings of fact, which were made only when evidence was complete at end of trial. Since expert S engaged in research using academically accepted approach, and since expert M was available for cross-examination, reliability and trustworthiness of expert S’s work could be assessed through expert M’s expert testimony. Some First Nation interviewees would be available to testify and be cross-examined. In addition, federal and provincial governments identified archival oral history recordings that were also available for comparison. Various mitigative measures would adequately address much prejudice arising from late filing of expert M’s report.
Alderville Indian Band v. R. (Jul. 28, 2015, F.C., Leonard S. Mandamin J., T-195-92) 264 A.C.W.S. (3d) 1.

Privacy Legislation


Conclusions in report of Office of Privacy Commissioner were reasonable

Applicant complained that Department of Human Resources and Skills Development Canada (HRSDC) improperly collected personal information from her employer in connection with its Targeted Wage Subsidy Program. Office of Privacy Commissioner (“OPC”) commenced formal investigation and advised applicant of investigation and invited her to submit additional information, which she did. HRSDC also made submissions, including fact it was unsuccessful in finding any files pertaining to applicant, and time for file retention had expired. Individuals interviewed by investigator had no recollection of events. Report concluded applicant’s name, phone number and SIN were collected, and this constituted personal information under s. 3 of Privacy Act (Can.), and Department had collected information as part of its mandate, but it could not conclude whether collection was without applicant’s consent given 12 years has passed and program no longer existed. Application for judicial review of report issued. Application dismissed. OPC’s operation as ombudsman, issuance of non-binding reports and master of own procedure militated against highly formal proceedings. Applicant had ample opportunity to make submissions and did so, and there was no indication of bias or reasonable apprehension thereof. Given investigators findings and numerous unsuccessful attempts to obtain information from HRSDC, the report’s conclusions were reasonable and the reasons were justified, transparent and intelligible.
W. (E.) v. Canada (Privacy Commissioner) (Dec. 24, 2015, F.C., Alan S. Diner J., T-125-13) 263 A.C.W.S. (3d) 1062.


Planning authority

Superintendent of national park could consider concept proposal that did not comply with current management plan

Superintendent of Jasper National Park approved for further consideration in development review process concept proposal of MTL to develop 10 to 15 tent cabins under new license of occupation at lake subject to park management plan amendment. Applicants asserted tent cabin element of concept proposal was not permissible under management plan, which prohibits release of new land for overnight commercial accommodation outside community of Jasper. Applicants sought judicial review. Application dismissed. Applicants wished to ensure that no amendments to management plan were made that would permit MTL’s proposal to proceed, but there was no basis to believe that such amendment would not be lawfully enacted. There was no reason why Parks Canada could not invite MTL to proceed with phase two of concept review on contingency basis set out in Superintendent’s decision. For purpose of simply deciding that further consideration should be given to proposal, decision was reasonable. Applicants were seeking to make management plan legally binding documents in strict and specific sense that was at odds with purpose as general guideline that provided long-term strategic direction. There was nothing in management plan, legislation or any jurisprudence to support proposition that Superintendent could not consider concept proposal that did not comply with current management plan. Decision made it clear that Superintendent did not approve tent cabin element of concept proposal and recognized that amendment to management plan would be required. Decision was no more than consent to proceed to phase two of review process, subject to overriding consideration of amendment to management plan. Amendments to Management Plan had their own process and, as yet, there was no reason to think that any proposed amendments would not be legitimate and made in accordance with that process. There was simply no evidence o support accusations that Superintendent was seeking amendments to management plan to accommodate MTL.
Canadian Parks and Wilderness Society v. Maligne Tours Ltd. (Feb. 8, 2016, F.C., James Russell J., T-1808-14) 263 A.C.W.S. (3d) 1058.

Constitutional Law

Charter of Rights

Marihuana for Medical Purposes Regulations (Can.) infringed s. 7 and not justified under s. 1

Plaintiffs each had medical requirement for marihuana. Marihuana for Medical Purposes Regulations (Can.) (MMPR) control use of marihuana for medical purposes. They limit patient to single government-approved contractor and eliminate ability to grow one’s own marihuana or to engage one’s own designated producer. Plaintiffs challenged MMPR, claiming that restrictions they impose on access to marihuana for medical purposes violates their s. 7 of Canadian Charter of Rights and Freedoms. MMPR declared invalid as contrary to s. 7 of Charter. Prohibition against marihuana engages s. 7 liberty interests in two distinct ways: right not to have one’s physical liberty endangered by risk of imprisonment and right to make decisions of fundamental personal importance. Choice of medication, including cannabis, to alleviate effects of illness with life-threatening consequences is decision of fundamental personal importance. Security of person is engaged by establishment of regulatory regime that restricts access to marihuana. Security of person encompasses personal autonomy involving control over one’s bodily integrity and being free from state interference. MMPR prohibit cultivation of marihuana for oneself or purchase from supplier not registered as licensed producer (LP). If one cannot access LP for any reason, that person’s security is engaged as there would be no access to medication, resulting in physical or psychological suffering. Limitations imposed by MMPR are not in accordance with principles of fundamental justice. Objectives of MMPR are reduction of risk to public health and safety and to improve way in which person who needs marihuana gains access to cannabis. Restrictions in MMPR bear no connection to objectives. MMPR force plaintiffs to choose between medication and other basic necessities without rational connection to objectives. Government costs savings, while legitimate policy goal, could not trump plaintiffs’ Charter rights. Law is arbitrary and overbroad. Infringement of s. 7 not justified under s. 1. Plaintiffs demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with promotion of public health. There were simple measures that could be taken to minimally impact s. 7 interests. Operation of declaration of invalidity of MMPR suspended to permit Canada to enact new or parallel medical marihuana regime.
Allard v. Canada (Feb. 24, 2016, F.C., Michael L. Phelan J., T-2030-13) 263 A.C.W.S. (3d) 358

Human Rights Legislation

Judicial review

Employer followed law on employment equity

Employee was able-bodied white man who worked for employer until he was deemed unfit to work. Employee claimed that employer discriminated against him because he did not fall within one of designated groups for employment equity under employer’s reverse discrimination policy. Employee filed complaint with Canadian Human Rights Commission alleging discrimination on basis of gender, ethnicity and skin colour. Commission rejected claim on basis that allegations of race, colour and sex were not supported. Commission recommended that complaint be dismissed. Employee applied for judicial review. Application dismissed. Portions of employee’s affidavit were argumentative and were struck out. New evidence presented by employee did not meet test for admission on judicial review. Applicable standard of review was reasonableness. Commission considered arguments of parties and properly weighed evidence before it in its screening role. Employment equity criteria could be used in proper cases in work force adjustment situations and employer used Employment Equity Act (Can.) to govern its employment equity policies. Evidence as whole supported commission’s finding that claim of discrimination was not made out by employee where employer followed law on employment equity. Employment equity criteria might not determine outcome of job posting, as employer could hire non-designated employee or seek exception to employment equity. Commission addressed issues of over-representation and failing to verify self-identification and came to reasonable conclusions. Commission’s decision fell within range of possible, acceptable outcomes defensible in respect of facts and law and was reasonable.
Bate v. Canada Revenue Agency (Jan. 25, 2016, F.C., John A. O’Keefe J., T-71-15) 263 A.C.W.S. (3d) 170.

Industrial and Intellectual Property


Consumer would likely be confused as to whether respondent’s trademark originated from same source as applicant’s trademark

Respondent filed applications for trademarks BENJAMIN MOORE NATURA and BENJAMIN MOORE NATURA & Design based on proposed use in Canada in association with interior and exterior paints. Applicant sold paint with BEAUTI-TONE NATURAL trademark and filed statements of opposition. Trademarks Opposition Board rejected applicant’s oppositions. Board rejected applicant’s argument that respondent failed to comply with Trade-marks Act (Can.) and found that respondent’s marks were distinctive and would not cause confusion. Applicant appealed. Appeal allowed. Applicant adduced new evidence that would have materially affected decision. New evidence was considered de novo. New evidence established that respondent learned that applicant had prior rights in NATURA and responded by applying for trademarks BENJAMIN MOORE NATURA and BENJAMIN MOORE NATURA & Design but did not establish non-compliance with s. 30(e) or (i) of act. There were insufficient grounds to conclude that respondent did not intend to use applied for marks in Canada at time of filing. In considering whether there was likelihood of confusion, distinctiveness factor slightly favoured applicant; length of use factor slightly favoured applicant; nature of wares factor favoured applicant; there was some overlap in channels of trade; degree of resemblance factor favoured applicant; and family of trademarks argument supported position of applicant. Ordinary consumer would likely be confused as to whether parties’ trad-marks originated from same source, particularly marks used in association with paint. As matter of first impression, casual consumer somewhat in hurry who encountered BENJAMIN MOORE NATURA paint, when consumer had no more than imperfect recollection of applicant’s BEAUTI-TONE NATURA paint, would likely be confused as to source of wares, at least at later material date when applicant’s NATURA brand had acquired particular distinctiveness in respect of paint. Consumer would likely be confused as to whether respondent’s trademark originated from same source as applicant’s trademark. Board’s decision was set aside and respondent’s trademark applications were refused.
Home Hardware Stores Ltd. v. Benjamin Moore & Co. (Dec. 4, 2015, F.C., Robin Camp J., T-2441-14) 262 A.C.W.S. (3d) 718.

Administrative Law

Freedom of information

Parts of discussion paper were subject to solicitor and client privilege

In 2006, Service Canada received access to information request from lawyer with Nova Scotia Legal Aid seeking variety of records related to Canada Pension Plan credit splitting. Request was transferred to Employment and Social Development Canada (ESDC). ESDC respondent to request but decided to exclude discussion paper from record on grounds that solicitor-client privilege exempted document pursuant to s. 23 of Access to Information Act (Can.). In 2008, lawyer complained to Office of Information Commissioner of Canada (OIC) about exemptions to his request. Discussions between OIC and ESDC led to disclosure of parts of discussion paper in 2014. ESDC maintained solicitor and client privilege over remaining parts of discussion paper. Lawyer authorized OIC to proceed with application for judicial review. At hearing, ESDC admitted that discussion paper had not been prepared by legal advisor. Application allowed in part. After reviewing discussion paper, court found that three parts remained subject to solicitor and client privilege. One of those parts contained policy advice stemming from legal opinions received by ESDC. Parties agreed that another part containing headnote should not be disclosed. Third part contained two sentences giving details about questions which were submitted to legal counsel and were privilege. Balance of discussion paper was to be disclosed.
Canada (Information Commissioner) v. Canada (Minister of Employment and Social Development) (Jan. 12, 2016, F.C., Michel Beaudry J., T-840-15) 262 A.C.W.S. (3d) 552.

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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?
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