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Admiralty

GENERAL

Information leading to suspension of security clearances could come from any source

Minister upheld cancellation of security clearance granted to individual under Marine Transportation Security Regulations (Can.). Individual was worker at port. On application for judicial review Federal Court quashed Minister’s decision finding it to be unreasonable. Federal Court concluded that evidence was not strong enough to warrant cancellation of security clearance. Federal Court also found Minister failed to give to individual procedures that he legitimately expected would be followed and found Minister’s reasons to be inadequate. Minister appealed. Appeal allowed. Federal Court erred in its interpretation of s. 509 of Regulations. Minister’s decision fell within ambit of s. 509 properly interpreted. Information leading to suspension of previously-granted security clearances could come from any source, not just from information supplied by applicant or from checks and verifications. Regulations did not say that requirements of verifiability and reliability applied to this sort of evidence. Reasonable grounds to suspect provided meaningful standard against arbitrary cancellation of security certificate. Requirements and verifiability and reliability applied only to this sort of evidence supplied during initial granting process. Federal Court erred and decision was reviewable on basis of reasonableness, not correctness. Decision was reasonable. Fact set out supported Minister’s conclusion that there were reasonable grounds to suspect that individual engaged in conducted described, and thus posed risk to security of marine transportation. Minister’s reasons were adequate. Ground of legitimate expectation that individual asserted did not arise in case. There was no breach of procedural fairness warranting quashing of Minister’s decision. Minister provided individual with opportunity to make case. Minister gave individual sufficient access to information to know case against him and to make meaningful response to it. Process was fair overall.
Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha (Mar. 3, 2014, F.C.A., Johanne Trudel J.A., David Stratas J.A., and Robert M. Mainville J.A., File No. A-431-12) 238 A.C.W.S. (3d) 282.

Professions

BARRISTERS AND SOLICITORS

No evidence confidential information actually used in preparation of notice of allegation

When appellant received notice of allegation, it was alarmed to see law firm of its predecessor, which had represented it in five proceedings respecting same medicinal ingredient, was representing respondent. As soon as appellant registered objection, firm resigned. However, appellant was still concerned about misuse of confidential information so applied for further relief. Federal Court granted order disqualifying respondent’s in-house counsel, who had previously been employed by firm in question, but found it did not have jurisdiction to declare respondent’s notice of allegation invalid. Cross-appeals by parties from Federal Court decision. Cross-appeals dismissed. Federal Court did not properly apply Martin test in relying on inference rather than actual evidence lawyer had received confidential information about medicinal ingredient in course of his previous employment. However, result was same, as this rendered lawyer’s disqualification automatic. Court could always consider conflicts of interest; however, there was no evidence appellant’s confidential information was actually used in preparation of notice of allegation, which consisted of objectively known facts and matters of law, so declaring it invalid could overshoot mark. Tests for disqualification did not even hint at this type of remedy so, while it was open that it may be appropriate in exceptional circumstances, evidence did not support it in this case.
Valeant Canada LP v. Canada (Minister of Health) (Feb. 24, 2014, F.C.A., John M. Evans J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-221-13) 238 A.C.W.S. (3d) 495.

Employment

PUBLIC SERVICE

Inmates participating in work programs not employees

Applicant was member of Canadian Prisoners’ Labour Confederation (CPLC), which was organization of inmates of federal correctional institutions. Objective of CPLC was to compel Correctional Service of Canada to engage in collective bargaining with respect to terms and conditions under which inmates participated in institutional work programs. Officials of Correctional Service of Canada denied applicant and other organizers of CPLC right to sign up members at particular institution. Applicant submitted complaint to Public Services Labour Relations Board. Board concluded it had no jurisdiction to entertain complaint because inmates of federal correctional institution who participated in institutional work program were not employees as defined in s. 2(1) of Public Service Labour Relations Act (Can.), because they were not appointed by Public Services Commission to position created by Treasury Board. Board dismissed complaint without considering merits. Applicant applied for judicial review of board’s decision. Application dismissed. Board’s understanding of facts was open to it on evidence before it. Board’s analysis of jurisprudence and relevant statutory provisions was well explained and soundly reasoned. Inmates participating in work programs organized by Correctional Service of Canada had not been appointed to position in federal public service and were not employees within meaning of Act.
Jolivet v. Treasury Board (Correctional Service of Canada) (Jan. 7, 2014, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-192-13) 236 A.C.W.S. (3d) 484.

Labour Relations

JUDICIAL REVIEW

Appellants did not fall within definition for inclusion in standby pay

Appellants were members of R.C.M.P. emergency response team (“ERT”). Members of ERT were specially trained in use of various tactical procedures and weapons. Service on ERT was voluntary. Members of ERT were expected to be available to respond to emergency situations whenever they arose. Members were required to carry pager at all times and were not permitted to do anything that might impair their ability to respond to emergency situation. Members were not compensated for maintaining constant state of readiness. Appellants filed grievance seeking compensation for time spent on call. Adjudicator determined that appellants were not entitled to standby compensation for time spent on-call. Federal Court found that adjudicator’s decision was reasonable and dismissed application for judicial review. Appellants appealed. Appeal dismissed. Judge selected correct standard of review of reasonableness. Adjudicator had regard to applicable definition and reasonably applied it to appellants’ circumstances. It was open to adjudicator on record to have regard to applicable definition and to find that appellants did not fall within definition for inclusion in standby pay. Adjudicator’s decision was reasonable.
Irvine v. Canada (Attorney General) (Dec. 9, 2013, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and James W. O’Reilly J.A. (ex officio), File No. A-43-13) Decision at 234 A.C.W.S. (3d) 514 was affirmed.  236 A.C.W.S. (3d) 210.

Constitutional Law

CHARTER OF RIGHTS

GST imposed not inconsistent with rights of law firm’s clients

Law firm appealed order that held that GST imposed by s. 165 of Excise Tax Act (Can.), did not infringe and was not inconsistent with rights of law firm’s clients guaranteed by s. 10(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Section 165(1) of Act had valid purpose. Law firm failed to establish that s. 165 of Act violated s. 10(b) of Charter. Law firm was required to produce evidence to demonstrate effect of GST on rights of clients but it failed to do so. Complete lack of evidence was fatal to constitutional challenge. GST imposed by s. 165 of Act did not infringe and was not inconsistent with rights of law firm’s clients guaranteed by s. 10(b) of Charter.
Stanley J. Tessmer Law Corp. v. R. (Dec. 12, 2013, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G.Near J.A., File No. A-104-09, A-50-13, A-51-13, A-52-13, A-53-13, A-54-13) Decision at 224 A.C.W.S. (3d) 508 was affirmed.  236 A.C.W.S. (3d) 259.

Customs and Excise

DECLARATION

Traveller did not have documentation that justified importation of fried chicken

On entering Canada via air from El Salvador, traveller completed Canada Border Services Agency (“CBSA”) declaration card on which he indicated he was not importing food, plant, animal or plant products into country. Upon secondary inspection, $18 worth of fried chicken was found in traveller’s luggage. Traveller received $800 penalty with option of reducing it to $400 by paying within 15 days. At hearing before Canadian Agricultural Review Tribunal, traveller admitted he owned luggage, but denied knowing about chicken. Traveller claimed his mother packed it without his knowledge. Parties agreed CBSA officer was not satisfied on reasonable grounds that chicken was processed in way that would prevent disease from coming into Canada and that no exemptions from Part IV of Health of Animals Regulations (Can.), assisted traveller. However, tribunal found that since traveller had not been given opportunity to justify importation of chicken after it had been discovered, he was not liable for penalty. CBSA brought application for judicial review of tribunal’s decision. Application granted. Clear intention of Parliament in Regulations was to provide for absolute liability regime for violations. Traveller did not have documentation that justified importation of chicken pursuant to exemptions in Part IV of Regulations. Therefore, decision by tribunal that traveller was to have been provided with reasonable opportunity to justify his importation of animal products beyond provisions of Part IV after they were discovered was error of law. Matter was remitted to tribunal for fresh determination.
Canada (Border Services Agency) v. Castillo (Nov. 20, 2013, F.C.A., K. Sharlow J.A., Robert M. Mainville J.A., and David G. Near J.A., File No. A-55-13) 235 A.C.W.S. (3d) 696.

Courts

JUDGES

Appellant could not benefit from subsequent changes in law having not appealed order

Appellant brought motion for order requiring respondent to produce documents and to cross-examine respondent’s officials for pending judicial review. Motion was dismissed. Deputy judge was over age 75 at time of order. Appellant’s motion for reconsideration of order was dismissed. As result of court’s decision deputy judges over 75 years of age could no longer determine matters. Appellant resumed motion for reconsideration claiming deputy judge had no power to make order. Appellant never appealed order. Motion was dismissed because court did not have legal authority to grant relief sought under Rule 397 of Federal Court Rules (Can.), and order was to be taken as valid because it was never appealed. Appeal dismissed. Federal Court had no ability to set aside order using reconsideration power under Rule 397, which was limited to correction of small oversights and clerical mistakes. Matter became res judicata on expiry of deadline for filing notice of appeal. Order was presumed to be valid absent proof of fraud. Appellant could not benefit from subsequent changes in law having not appealed order. Yeager v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 5, 2013, F.C.A., Blais C.J., Sharlow J.A., and David Stratas J.A., File No. A-435-12) 235 A.C.W.S. (3d) 802.
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