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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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Appeal

PROCEDURE

Filing fee was over five weeks’ pay for inmate appellant

Appellant was self-represented inmate who had been in jail for 21 years. Appellant’s pay in jail was $52.50 per two weeks, which was subject to deductions. Appellant could no longer afford to call family as regularly due to new deductions and family did not have car to visit him in jail. Appellant had borrowed money to pay for cardiac care and university education for his children. Appellant brought motion to waive $50 filing fee for filing notice of appeal. Motion granted. Court had jurisdiction to grant relief sought. Two competing principles considered were right of access to court and need to charge fees for services rendered. Only in special circumstances could court depart from requirement to pay fees. Adverse exercise of discretion would foreclose access to courts by whole class of inmate. Appellant had been declared vexatious litigant but he had sought leave to commence proceedings. Appellant remained entitled to access to courts. Filing fee was over five weeks’ net pay for appellant before he tended to other significant expenses. Court exercised its discretion in favour of granting fee waiver.
Fabrikant v. Canada (Apr. 2, 2014, F.C.A., David Stratas J.A., File No. A-338-13) 239 A.C.W.S. (3d) 839.

Administrative Law

DUTY TO ACT FAIRLY

Board should have held hearing to resolve conflict

Applicant, bus driver, suspended for failing to respect minimum rest periods. Union grieved but subsequently settled. Applicant terminated for continued failure to respect minimum rest periods and not correctly recording work hours. Union filed termination grievance but refused to proceed to arbitration. Union by-laws entitle members to refuse to take grievance to arbitration based on recommendation from union’s executive board. Applicant argued he was not informed in timely manner of board meeting during which termination grievance discussed nor was he given opportunity to present case before members. Members accepted recommendation that termination grievance not be taken to arbitration. Applicant complained to Canada Industrial Relations Board, alleging union breached duty of representation. Board declined to hold hearing but appointed industrial relations officer to investigate. Board concluded that applicant’s refusal to participate in meetings precluded board from finding union acted in arbitrary, discriminatory or bad faith manner. Board dismissed application for reconsideration, finding it was entitled to rule on matter without hearing and was not obliged to consider recording of members’ meeting since applicant refused to identify source. Applications for judicial review allowed. Employee generally does not have right to take grievance to arbitration without union’s consent so union cannot act in arbitrary, discriminatory or bad faith manner towards employee exercising collective agreement rights. Board failed to consider whether union conducted proper investigation and gathered sufficient information. Employee’s failure to participate was relevant factor but could not, itself, preclude board from finding that union breached duty of fair and equitable representation, particularly in context of termination grievance. Duty remained on union to fulfil duty of representation, regardless of employee’s conduct. Board required to examine union’s conduct to determine whether investigation and decision were fair and equitable. Failure to do so resulted in unreasonable initial and reconsideration decisions. Board breached duty of procedural fairness by refusing to consider recording of union members’ meeting submitted by applicant and by failing to hold hearing. Recording was clearly relevant to whether applicant attended meeting; union did not object to production. Board acknowledged it had contradictory evidence regarding applicant’s attendance and should have held hearing to resolve conflict.
Cadieux and ATU, Local 1415, Re (Mar. 10, 2014, F.C.A., Johanne Gauthier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-447-12, A-118-13) 239 A.C.W.S. (3d) 1011.

Employment Insurance

DECISIONS OF UMPIRE

Complete, whole day did not necessarily mean calendar day

Claimant became entitled to employment insurance benefits effective July 3, 2011. For short period of time claimant was outside Canada and unavailable for work. Claimant left Canada on morning of first day and returned during evening of second day. Pursuant to s. 37(b) of Employment Insurance Act (Can.), claimant was not entitled to receive employment benefits for any period she was not in Canada. Umpire found that first day did not count in calculation of period claimant was outside Canada, but second day did. Attorney General applied for judicial review of umpire’s decision. Application dismissed. Interpretation that would disentitle person from benefits for fractions of days would not further administrative efficiency. Express words, design and architecture of Act supported view that “period” in s. 37(b) was to be expressed only in whole days, not fractions of days. Person who was outside Canada for fraction of complete day was not counted as “period” outside of Canada under s. 37(b). Claimant was away for total of one day, but on each calendar day she was away for only fraction of day. Absence on each calendar day should not be disregarded. “Period” in s. 37(b) was period, expressed in complete, whole days, during which claimant was outside of Canada. Complete, whole day did not necessarily mean calendar day and it could include continuous 24-hour period that straddled two calendar days. Claimant was outside of Canada for one complete whole day and she was not entitled to receive one day of benefits.
Canada (Attorney General) v. Picard (Feb. 17, 2014, F.C.A., K. Sharlow J.A., David Stratas J.A., and D.G. Near J.A., File No. A-3-13) 239 A.C.W.S. (3d) 659.

Social Welfare

CANADA PENSION PLAN

Board did not ask whether applicant capable of pursuing substantially gainful employment

Applicant was injured in motor vehicle accident and suffered soft tissue injuries, depression and myofascial pain syndrome. Applicant took yoga and was employed on minimal part-time basis as yoga instructor well after time of minimum qualifying period. Applicant’s application for disability pension under Canada Pension Plan was denied. Board dismissed appeal finding applicant’s disability was not severe because she was capable of substantially gainful employment. Applicant sought judicial review. Application granted. Social Security Tribunal was directed to grant appeal and to make order granting application for disability benefits. Decision was unreasonable. Board did not apply legal standards. Board latched onto Review Tribunal’s reasons rather than conducting de novo analysis as required. Board did not ask whether applicant was capable of regularly pursuing substantially gainful employment and did not assess whether applicant had severe and prolonged disability. Board failed to examine applicant’s condition at time of her minimum qualifying period and afterward, and looked only at her more recent condition. Board did not assess whether $75 per week was substantially gainful employment or if applicant could obtain other substantially gainful employment. Case was exceptional in that delay was substantial, record showed prejudice would be caused by further delay, and there was sparse evidence in support of outcome reached by board. Benefits were meant to address serious condition. Record showed applicant’s disability was severe at time of minimum qualifying period.
D’Errico v. Canada (Attorney General) (Apr. 10, 2014, F.C.A., Pierre Blais C.J., K. Sharlow J.A., and David Stratas J.A., File No. A-47-13) 239 A.C.W.S. (3d) 532.

Employment Insurance

APPEAL

Applicant’s decision to leave employment was personal and did not constitute just cause


Applicant was journeyman electrician who resided in Lockport, Manitoba. Applicant took employment in Weskwatim, Manitoba, from January to March 2012, and then left that employment. Applicant claimed he left employment due to family problems that resulted from him being out of town for work and only able to return home once per month. Employment insurance commission denied applicant’s claim for employment insurance benefits on basis that he voluntarily left his employment without just cause. Board of referees dismissed applicant’s appeal and umpire upheld board’s decision. Applicant applied for judicial review. Application dismissed. Record showed that applicant did not have alternative offer of employment when he left his employment. Umpire did not err in concluding that applicant’s decision to leave employment and return home was personal and that personal decision did not constitute just cause.
Andrade v. Canada (Attorney General) (Apr. 7, 2014, F.C.A., Marc Noël J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., File No. A-56-13) 239 A.C.W.S. (3d) 388.

Administrative Law

BOARDS AND TRIBUNALS

Administrative tribunal’s interpretation of own statute reviewable on standard of reasonableness

Section 16(1) of Canada Transportation Act (CTA) specified that, subject to Canadian Transportation Agency rules, two members constituted quorum. In 2013, respondent Canadian Transportation Agency amended own General Rules by adding Rule 2.1 stating that one member constituted quorum in all proceedings before agency. Appellant granted leave to appeal on question of law, whether respondent permitted to amend quorum rule without approval of Governor in Council (GIC). Appellant submitted that Rules were regulations within meaning of s. 36(1) of Act and, as such, could only be made with approval of GIC. Appellant also submitted that since Rules originally made with approval of GIC, they only be amended with approval of GIC. Respondent claimed authority to enact rule according to rule-making power in s. 17 of Act. Appeal dismissed. Administrative tribunal’s interpretation of own statute reviewable on standard of reasonableness. Under s. 17, respondent granted power to make rules respecting variety of matters, including number of members required to hear any matter or perform any function. Whether respondent required approval of GIC depended on interpretation of “regulation” in s. 36(1). While s. 2(1) of Interpretation Act (Can.), and s. 2(1) of Statutory Instruments Act (Can.), both provided that “regulation” included rule, definitions limited to only those statutes themselves. Contrary intention evidenced in CTA, which did not use words “regulation” or “rule” interchangeably. Act used “rule” only for internal procedural or non-adjudicative administrative matters, such as quorum. Interpreting s. 17 as granting power to make rules without approval of GIC reasonable on textual, contextual and purposive analysis.
Lukács v. Canadian Transportation Agency (Mar. 19, 2014, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Edmond P. Blanchard J.A. (ex officio), File No. A-279-13) 239 A.C.W.S. (3d) 2.

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.
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