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Dismissal of motion for production upheld on appeal
Applicant, professor of sociology and criminology doing research on Correctional Service Canada Review Panel, submitted request under Access to Information Act for documents related to panel from respondent, Public Safety Canada. Among other things, he sought panel’s work plan, budget, information regarding appointment of members and information regarding members’ refusal to be interviewed by him. Public Safety Canada responded there were no relevant records. Applicant made complaint to Information Commissioner of Canada. Commissioner investigated and confirmed thorough search had been conducted and there were no relevant records. Commissioner suggested applicant submit request for information to Correctional Service Canada. Instead, applicant brought application for judicial review. Applicant then brought motion under R. 317 of Federal Courts Rules for production of all documents related to creation, supervision and responsibility for work of panel. Motion denied as attempt to obtain same information requested in access to information request which respondent had already denied possessing. Applicant brought motion for reconsideration which was denied. Applicant brought appeal which was dismissed. Following cross-examination of respondent’s representative, applicant brought motion for issuance of subpoena duces tecum to compel production of certain notes and respondent’s entire access to information file. Motion denied on basis, among other things, issue had already been decided. Applicant brought motion for leave to appeal. Motion denied. Decisions by prothonotaries not to be disturbed unless they raised question vital to final issue in proceeding or order made clearly wrong in sense that exercise of discretion based upon wrong principle or misapprehension of facts. This court had already decided matters of document production and discovery not vital to final outcome of case. Prothonotary had, however, erred in finding that documents for which production sought same as those sought earlier. While there was some overlap, they were not identical with result res judicata did not apply. Exercising discretion de novo, however, motion should still be denied on basis applicant really seeking contents of tribunal record which had already been produced or should be subject of motion under R. 317 and R. 318. Prothonotary had made no error in deciding applicant had failed to follow R. 91 with respect to direction to attend, that subpoena procedure under R. 41 was not available in context of judicial review or in adopting portion of respondent’s representations, qualifying motion as fishing expedition, as his own.
Yeager v. Canada (Department of Public Safety and Emergency Preparedness) (Aug. 17, 2015, F.C., Denis Gascon J., File No. T-91-09) 257 A.C.W.S. (3d) 502.
Human Rights Legislation
No basis in law to support claim of discrimination by Canadian Forces member
Applicant joined Canadian Forces in 1999. He served two overseas terms in Afghanistan, in 2004 and 2006. After completing his second overseas tour, applicant was diagnosed with several illnesses, including hypertension and high cholesterol in 2006, anxiety disorder in 2007, and myocardial infarction and diabetes in 2010. Despite receiving normal vascular examinations in 2010, applicant was assigned medical employment limitations, which meant that he was no longer deployable. Following administrative review process, it was recommended that applicant be medically released. Applicant submitted grievance complaint on February 20, 2013 requesting that his medical category be reduced to G3, that medical employment limitations be removed from his file, and that his risk assessment be reduced from high to low. Military Grievances Review Committee dismissed grievance in March 2014. Applicant applied for judicial review of decision. Application dismissed. Applicant’s main argument was that Chief of Defence Staff unlawfully discriminated against him on basis of his medical disability. Canadian Human Rights Act provided that universality of service policy was bona fide occupational requirement and was thus exception to requirement to establish that accommodation would result in undue hardship. There was no basis in law to support applicant’s claim of discrimination under Act. Nor was there evidence to ground claim of discrimination contrary to Charter. In light of the medical reports as well as the relevant policies of Canadian Forces, Chief of Defence Staff reasonably concluded that medical employment limitation was valid, that it violated universality of service principle and that it was in best interests of both applicant and CF that applicant be medically released. Decision of Chief of Defence Staff met reasonableness standard because it was justifiable, transparent and intelligible, falling within range of possible, acceptable outcomes that was defensible in view of facts and law.
Shannon v. Canada (Minister of National Defence) (Aug. 18, 2015, F.C., E. Heneghan J., File No. T-2024-14) 257 A.C.W.S. (3d) 413.
Human Rights Legislation
Commission’s decision did not respond to applicant’s submissions
Applicant worked for respondent bank as assistant product manager. In July 2009 she commenced period of disability leave after she was diagnosed with anxiety and depression. No date was set for her return. In July 2010, bank permanently staffed applicant’s position with another employee. In August or September 2010 applicant was found to be medically fit to return to work without restriction, and informed bank. She returned to work on part-time basis, but in different role at different location. In June, 2011, bank notified applicant that her new position would be eliminated without cause due to corporate restructuring. Applicant’s employment with bank ended in August 2011. She filed complaint with Canadian Human Rights Commission alleging discrimination on grounds of disability. Commission adopted investigator’s report that there was insufficient evidence that bank’s decision to end applicant’ employment was related to her disability and dismissed complaint. Applicant applied for judicial review on basis that Commission failed to address her complaint that bank failed to accommodate her disability and that investigator had failed to obtain evidence from two key witnesses. Application allowed in part. There was nothing to indicate that applicant’s concerns regarding failure of investigator’s report to address bank’s duty to accommodate were considered by commission. Commission’s decision did not respond to applicant’s submissions and it appeared that they were simply ignored. That constituted breach of procedural fairness and matter must be remitted to commission for reconsideration. Investigator made reasonable efforts to establish why bank decided to permanently staff applicant’s position while she was on disability leave, and manner in which bank assisted applicant in finding another position within organization. Evidence of alleged key witnesses was not required.
Brosnan v. Bank of Montreal (Jul. 29, 2015, F.C., Simon Fothergill J., File No. T-1332-14) 256 A.C.W.S. (3d) 664.
Charter of Rights
Denial of inmate’s grievance regarding cancellation of television channels violated applicant’s right of freedom of expression
Application by 46-year old prison inmate for judicial review of decision of acting senior deputy commissioner of Correctional Service Canada that denied applicant’s grievance over cancelling of two television channels included in package subscribed for by group of inmates. These channels aired sexually explicit conduct. They were cancelled because female correctional officers expressed degraded sense of personal dignity and they alleged that their safety was being undermined from their exposure to sexually explicit material on regular basis in workplace. Claim for denial of procedural fairness was only raised for first time on judicial review application. Application allowed. File was sent back to different commissioner for new determination. Claim for denial of procedural fairness was denied because applicant waived it. He was aware of this claim and he failed to raise it earlier in proceedings. Decision, however, was not reasonable because of lack of evidence on key issues. There was also no evidence of any connection between inmates watching sexually explicit content on television and sexual harassment of correctional officers. Applicant provided evidence that female officers were not at risk from inmates who watched pornographic movies. Decision under review violated applicant’s right of freedom of expression.
Naraine v. Canada (Attorney General) (Jul. 30, 2015, F.C., Jocelyne Gagné J., File No. T-1108-14) 123 W.C.B. (2d) 476.
Goods and Services Tax
Federal Court lacked jurisdiction to hear application to enforce settlement agreement
Homebuyer entered into contract for purchase of new home from builder in 2007 and took possession in 2011. Homebuyer received full credit for Goods and Services Tax (GST) new housing rebate as part of final closing statement. Homebuyer applied for Goods and Services Tax/Harmonized Sales Tax new housing rebate, including provincial new housing rebate. Homebuyer received transitional tax rebate credit. Canada Revenue Agency disallowed application, but then offered to refund homebuyer difference between claimed amount and two previously credited amounts. Following homebuyer’s acceptance, agency found that it could not implement settlement agreement as homebuyer had already correctly received federal GST new housing rebate and transitional rebate and was not entitled to Ontario new housing rebate. Homebuyer brought application for judicial review to enforce settlement agreement. Application dismissed. Federal court did not have jurisdiction to hear application for judicial review, pursuant to s. 18.5 of Federal Courts Act and s. 12(1) of Tax Court of Canada Act. Matter was in fact appeal of tax reassessment and fell within exclusive jurisdiction of Tax Court of Canada. Essential nature and character of claim was collateral attack on validity of tax reassessment. If court had jurisdiction to hear application, it would have held that the agency was required to revoke settlement agreement as homebuyer was not eligible for provincial new housing rebate under s. 256.21 of Excise Tax Act.
Sood v. Minister of National Revenue (Jul. 13, 2015, F.C., Denis Gascon J., File No. T-1045-14) 256 A.C.W.S. (3d) 475.
Prothonotary’s confidentiality order upheld on appeal
Motion for confidentiality order was brought in context of proposed class proceeding. Pleadings alleged that in November 2013, correspondence was mailed by Health Canada to class in envelope that displayed return address identifying Health Canada's Marihuana Medical Access Program. Claim alleged that the inclusion and display of that return address constituted breach of contract, negligence, breach of confidence and privacy as well as infringement of Canadian Charter of Rights and Freedoms. Approximately 40,000 individuals were said to have received that correspondence. In consequence, class actions were commenced in several jurisdictions. Actions had not reached certification stage. Prothonotary granted confidentiality order on basis that identifying plaintiffs personally disclosed their personal health and medical information, and their treatment program as prescribed by their medical doctor. It also went to central issue in case of whether plaintiffs' identity and personal information was private and should be kept confidential. Defendant appealed. Appeal dismissed. There was serious risk to plaintiffs’ privacy and personal safety. While prothonotary erred in considering injury to employment in her assessment of serious risk, it was not determinative to her decision. Unique facts in case, in which underlying dispute related to breach of privacy, provided sufficient basis of support for prothonotary's findings given standard of review. Whatever reservations there may be about anonymous representative plaintiffs in class action, that issue was best determined on full record and jurisprudence relevant to obligations of representative plaintiffs.
John Doe v. R. (Jul. 24, 2014, F.C., Donald J. Rennie J., File No. T-1931-13) 256 A.C.W.S. (3d) 329.
Charter of Rights
Decision to cease funding for certain religious services to inmates did not violate Charter
Plaintiff commenced action for damages following minister of Justice's decision to cease funding for certain religious services to inmates in federal correctional facilities. Plaintiff alleged that, as result of decision, he lost spiritual guidance of his imam. Prothonotary struck out plaintiff's action. Plaintiff appealed on basis of negligence and breach of ss. 2(a), 7 and 12 of Canadian Charter of Rights and Freedoms. Appeal dismissed. It was plain and obvious that defendant had no duty of care that would oblige funding of imam for plaintiff. Section 2(a) of Charter was intended to prevent state from interfering with individuals' religious beliefs and practices, but did not extend to imposing positive obligation on state to provide plaintiff with free access to his preferred means of practising his religion. Failure of state to provide funding for imam for plaintiff did not constitute deprivation of plaintiff's life, liberty, or security pursuant to s. 7 of Charter. Defendant's action to cease funding imams' services in federal correctional facilities did not constitute cruel and unusual punishment under s. 12 of Charter.
Elliott v. R. (Jul. 17, 2015, F.C., George R. Locke J., File No. T-2099-14) 256 A.C.W.S. (3d) 315.