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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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Employment Insurance

ENTITLEMENT

Violence in workplace cannot be sanctioned by entitlements to benefits

Respondent slapped co-worker after she insulted members of his family. Respondent lost employment. Umpire found that misconduct did not exclude respondent’s entitlement to employment insurance. Arbitrator confirmed decision. Employment Insurance Commission applied for judicial review of arbitrator’s decision. Application granted. Umpire’s decision quashed, and matter remitted for redetermination based on finding that respondent was not entitled to benefits. To constitute misconduct, behaviour had to be willful. Umpire concluded that respondent’s violent act was not deliberate. Fact that respondent acted on impulse was not relevant to decision as to whether there was misconduct. Violence in workplace could not be sanctioned by entitlements to benefits. Purpose of law was to protect workers who lost employment involuntarily, not those who were unemployed because of their fault.
Canada (Procureur général) c. Kaba (Sep. 11, 2013, F.C.A., Noël J.A., Johanne Trudel J.A., and Mainville J.A., File No. A-33-13) 245 A.C.W.S. (3d) 854.

Aboriginal Peoples

CROWN RELATIONSHIP

Appellant’s main duty to distribute estate properly and efficiently

Appellant was appointed administrator of estate of uncle, Indian, who died intestate and whose main assets included two undivided parcels of land on reserve. Sixteen years after appellant’s appointment, estate and land remained undivided among heirs. Minister ordered appellant’s removal under s. 43 of Indian Act (Can.), for failure to fulfill duties. Appellant appealed Minister’s decision. Federal Court judge dismissed appeal. Appellant appealed. Appeal dismissed. Federal Court judge carefully assessed facts of case including right of beneficiaries to be in possession of their share of estate and length of appellant’s administration before his removal. Record supported finding of Federal Court judge that Minister had done his best to assist and support appellant. Minister received several complaints from heirs that appellant was aware of. Appellant’s main duty was to distribute estate properly and efficiently. It was reasonable for Minister to conclude that appellant was not discharging his duties and to order his removal as administrator.
Longboat v. Canada (Attorney General) (Oct. 7, 2014, F.C.A., Johanne Trudel J.A., Webb J.A., and Boivin J.A., File No. A-425-13) Decision at 234 A.C.W.S. (3d) 816 was affirmed.  245 A.C.W.S. (3d) 739.

Civil Procedure

PLEADINGS

No requirement that affirmation be made on any holy book

Plaintiff applied for judicial review of Canadian Human Rights Commission’s decision not to hear his complaint. Plaintiff attempted to file evidence with unsworn affidavits. Plaintiff was Mennonite and refused to swear affidavit on Bible that was provided by court’s registry in Winnipeg because it was not “undefiled” Bible. Plaintiff was ordered to either obtain access to “undefiled” Bible and swear on it or to make solemn affirmation to affirm his affidavit. Application for judicial review was dismissed. Plaintiff brought action against Crown seeking order declaring Federal Court Registry in Winnipeg in contempt of court, order directing court to hear application and interim order providing means of affirming or swearing his affidavit evidence that did not offend his conscience. Defendant brought motion to strike out plaintiff’s statement of claim. Prothonotary ordered plaintiff’s statement of claim to be struck out on basis that it disclosed no reasonable cause of action and was abuse of process. Plaintiff appealed. Appeal was dismissed. Plaintiff appealed. Appeal dismissed. Plaintiff misunderstood effect of “affirmation” and entire case was based on misunderstanding. Pursuant to R. 80(1) of Federal Courts Rules (Can.), affidavits were to comply with Form 80A, which indicated that affidavit may be sworn or affirmed. There was no requirement that affirmation be made on any holy book. Word “affirmation” referred to method of completing affidavit that had no religious connotation and plaintiff had no basis on which to refuse to provide necessary court documentation in support of action he commenced. Motions judge applied correct principles of law and clearly understood factual background in concluding that statement of claim disclosed no reasonable cause of action. Leave to appeal to Supreme Court of Canada was denied.
Klippenstein v. R. (Sep. 30, 2014, F.C.A., Eleanor R. Dawson Acting C.J., Karen Sharlow J.A., and David G. Near J.A., File No. A-135-14) Decision at 238 A.C.W.S. (3d) 90 was affirmed.  245 A.C.W.S. (3d) 522.

Admiralty

ARREST

Plaintiffs could not arrest more than one ship

At marine terminal facility owned by plaintiffs, defendant’s vessel struck and damaged part of trestle that led from shore to berth. Berth became unstable until repairs were affected and parts were replaced. Plaintiffs commenced action in Supreme Court of British Columbia and arrested vessel. Parties negotiated release of vessel from arrest. Defendant issued letter of understanding (LOU) of US $26 million and in consideration of LOU plaintiffs were to agree to release vessel from arrest and to refrain from arresting any other ship defendant owned. Plaintiffs decided that clause in LOU that prevented them from arresting sister ship of vessel was not acceptable. British Columbia Supreme Court judge found that there was legally binding agreement plaintiffs entered into pursuant to which they agreed to waive right to arrest sister ships in consideration of security being provided by defendant. Judge found there was no basis to set aside agreement on ground of mistake. Judge found that, pursuant to s. 43(8) of Federal Courts Act (Can.), plaintiffs could not arrest both vessel and sister ship. Plaintiffs appealed. Appeal dismissed. Judge correctly concluded that there was no mistake that could vitiate agreement. Plaintiffs knew of uncertainties of arresting more than one ship and agreed to terms of LOU fully aware of divergent opinions on issue. Pursuant to Act, plaintiffs could not arrest more than one ship. Plaintiffs could proceed either under s. 43(2) of Act to secure arrest of offending vessel or under s. 43(8) of Act to secure arrest of sister ship. Plaintiffs elected to proceed under s. 43(2) of Act and were barred from seeking arrest under s. 43(8) of Act. By enacting s. 43(8) of Act, Parliament intended to confer on plaintiffs in Canada right to arrest sister ship in lieu of offending ship. Parliament did not intend for Federal Court to exercise jurisdiction in rem under both s. 43(2) and (8) of Act for same claim.
Westshore Terminals Limited Partnership v. Leo Ocean S.A. (Oct. 15, 2014, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Johanne Trudel J.A., File No. A-101-14) Decision at 238 A.C.W.S. (3d) 281 was affirmed.  245 A.C.W.S. (3d) 496.

Income tax

EVASION OF TAX

Motion was collateral attack on jeopardy order proceedings

Taxpayer wrote on income tax returns, “collecting income tax by government is against Constitution of Canada.” Taxpayer was charged with income tax evasion. Taxpayer’s objections to 1993 to 1996 income tax assessments were being held pending disposition of tax evasion charges. Between June 1999 and May 2003, CRA collected $871,291.90 from taxpayer pursuant to 1999 jeopardy order. In 2010 and 2011, taxpayer was twice convicted of tax evasion and ordered to pay fines of $522,346.73 and $101,393.80. Taxpayer’s case before Tax Court was reactivated. Taxpayer wished funds collected pursuant to jeopardy order to be applied to liability which would survive potential bankruptcy. Federal Court dismissed taxpayer’s motion for order directing that money collected pursuant to jeopardy order be first applied to fines arising from criminal convictions. Court considered that, when jeopardy order was issued and money was collected pursuant to order, only debt owing was tax debt, not criminal fine and that taxpayer was not permitted to choose how to allocate involuntary payment. Taxpayer appealed. Appeal dismissed. Judge did not err in dismissing taxpayer’s motion. Taxpayer was not challenging validity of search warrant so there was no basis to conclude taxpayer’s Charter rights were violated. Taxpayer failed to show that judge’s factual finding that CRA had every reason to believe taxpayer would not voluntarily pay his taxes was wrong or that jeopardy order would not have issued but for evidence obtained by way of search warrant. There was no impropriety in fact that some evidence obtained through search warrant was put before court in motion to obtain jeopardy order. Nor was CRA’s use of jeopardy order to enforce payment of tax debt analogous to use of criminal powers to enforce civil debt. Only way to vary or vacate jeopardy order was by application for review by judge of court which issued order and no appeal lies from such review. Jeopardy order was already reviewed and upheld so motion was collateral attack on jeopardy order proceedings. Finally, taxpayer failed to demonstrate that process followed to date, or to be followed, was not in accordance with principles of fundamental justice.
R. v. Klundert (Jun. 16, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G. Near J.A., File No. A-83-13) Decision at 107 W.C.B. (2d) 155 was affirmed.  116 W.C.B. (2d) 179.

Immigration

OFFENCES

Only by assuming guilt by association could director conclude applicant committed offence

Director denied applicant passport services for five years because he knowingly organized, induced, aided or abetted wife to travel using counterfeit New Zealand passport. Applicant applied for judicial review. Application was granted. Attorney General appealed. Appeal dismissed. Federal Court erred in finding that director acted in procedurally unfair manner by failing to put alleged offence to applicant for response because it was put to him. However, facts relied on by director could not lead to conclusion that applicant committed offence under s. 117 of Immigration and Refugee Protection Act (Can.). None of facts positively supported finding that applicant used his passport to knowingly aid, organize, induce or abet wife to come to Canada with counterfeit passport. Only by unreasonably assuming guilt by association could director conclude from facts alone that applicant committed s. 117 offence. Director disbelieved what applicant told him but disbelief, without more, did not support finding that applicant committed offence.
Dias v. Canada (Attorney General) (Sep. 10, 2014, F.C.A., Pelletier J.A., David Stratas J.A., and Webb J.A., File No. A-102-14) Decision at 236 A.C.W.S. (3d) 989 was affirmed.  245 A.C.W.S. (3d) 183.

Civil Procedure

DISCOVERY
Judge erred in finding that undisclosed documents were subject to litigation brief privilege
During protracted discovery process, plaintiffs came into possession of documents that defendant Canada alleged were privileged. Canada sought order for return of all privileged documents while plaintiffs sought order requiring Canada to produce other documents over which Canada claimed privilege and had not produced. Plaintiffs’ motion was dismissed and Canada’s motion was allowed in part. Prothonotary found that Canada failed to establish litigation brief or settlement privilege but found that documents were subject to solicitor-client privilege and were to be returned to Canada. Prothonotary found there was no waiver of privilege. Plaintiffs appealed prothonotary’s decision. Appeal was dismissed. Judge upheld Canada’s claim that certain documents were protected from disclosure on basis that they were subject to litigation brief privilege and upheld Canada’s claim to solicitor-client privilege over documents Canada itself disclosed to plaintiffs. Plaintiffs appealed. Appeal allowed. Judge erred in finding that Canada established that undisclosed documents were subject to litigation brief privilege. Contents of documents did not establish that it was more likely than not that each document was prepared for dominant purpose of seeking legal advice or aiding in conduct of litigation. Claim to litigation privilege was disallowed. Evidence did not support judge’s finding that all of allegedly privileged documents were inadvertently disclosed in context where there was no intention to waive privilege. Evidence fell short of establishing that disclosure was inadvertent. There was no direct evidence that Canada did not intend to waive claim to privilege. Canada’s claim to solicitor-client privilege had been waived in respect of all documents at issue that were disclosed to plaintiffs.
Chemawawin First Nation v. R. (Sep. 12, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-350-12, A-351-12, A-358-12) Decision at 220 A.C.W.S. (3d) 505 was reversed.  244 A.C.W.S. (3d) 809.
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