|Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.
Single or multiple copies of the full text of any case digested in the newspaper or sampled here can be obtained by calling Case Law's photocopy department at:
(905) 841-6472 in Toronto,
(800) 263-3269 in Ontario and Quebec, or
(800) 263-2037 in other provinces.
To request a case online
For more Case Law every week, subscribe to Law Times.
Incumbent on Minister to explain decision different from one that largely favoured transfer
Minister appealed decision of Federal Court setting aside refusal of accused’s request to be transferred from United States prison to Canada. Federal Court set aside Minister’s refusal of accused’s request to be transferred from United States prison to Canada. Federal Court found that Minister’s decision was unreasonable. In Federal Court’s view, record before Minister required him to give better explanation why accused’s request for transfer should be rejected. As well, Federal Court found that Minister applied unreasonably factors International Transfer of Offenders Act (Can.) required him to consider. Parties agree that Federal Court correctly selected reasonableness as standard of review but disagreed on whether Federal Court applied that standard correctly. Minister argued it reasonably found that accused left Canada with intention of abandoning Canada as his place of permanent residence under s. 10(1)(b) of Act and that alone was sufficient reason for Minister to refuse to grant transfer. Appeal dismissed with costs, fixed at $2,500 as agreed by parties. Reading that exalted abandonment factor under s. 10(1)(b) of Act above all other s. 10 factors was not reasonable reading of Act. It was true that in particular cases Minister may find that s. 10(1)(b) factor deserved significant weight but had that been Minister’s view in this case, court would nevertheless have found that it was incumbent on Minister to consider other s. 10 factors and explain why he was reaching decision different from assessments made by Director of International Transfer Unit of Corrections Canada that largely favoured transfer.
Carrera v. Canada (Minister of Public Safety) (Dec. 2, 2013, F.C.A., Evans J.A., David Stratas J.A., and Webb J.A., File No. A-266-13) Decision at 108 W.C.B. (2d) 406 was affirmed. 110 W.C.B. (2d) 567.
Commission finally determined allocation of severance and vacation pay correctly
Applicant was laid off from job and received amount as severance pay. Applicant attended Canada Employment Insurance Commission and informed commission he received severance payment and amount for vacation pay. Applicant was told he would have to wait to apply for benefits. Applicant was subsequently told he would qualify immediately for benefits and new application was antedated. Applicant tried to return cheques he received, because he knew he had to wait because of severance pay. Applicant was informed he could not return cheques. Commission used wrong amount of average of normal weekly earnings from employment in calculating number of weeks applicant would have to wait to collect benefits with result that number of weeks was less than it would have been if correct amount were used. Commission determined applicant had debt to commission and debt was paid. Commission made determination of how severance and vacation pay should have been allocated and applicant should have waited another 11 weeks before receiving benefits. Applicant was found to be entitled to receive benefits for 52 weeks, but timing for payment was delayed because he received severance and vacation pay. Board of referees dismissed applicant’s appeal on basis that final determination was correct. Umpire dismissed appeal. Applicant sought judicial review. Application dismissed. Commission finally determined allocation of severance amount and vacation pay correctly and in accordance with legislative provisions. There was no basis to interfere with decision of umpire.
Robinson v. Canada (Attorney General) (Oct. 29, 2013, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-453-12) 234 A.C.W.S. (3d) 929.
Not immutable principle of law that no costs awarded where success divided
Appeal from judgment awarding respondents costs of $45,000. Judgment disposed of application under Patented Medicines (Notice of Compliance) Regulations (Can.), for order prohibiting appellant from selling certain drug until expiry of two patents. Application judge awarded respondents 50% of costs claimed. Appeal dismissed. Decision on costs was discretionary and would not be disturbed on appeal unless decision was based on error in principle or was plainly wrong. Where success was divided, it was not immutable principle of law that no costs would be awarded. Application judge was clearly aware of practical result of proceeding and remedies sought.
Mylan Pharmaceuticals ULC v. Bristol-Myers Squibb Canada Co. (Oct. 1, 2013, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-74-13) 234 A.C.W.S. (3d) 560.
If party could not legally accept offer then costs should not be imposed
Taxpayer appealed assessment that denied deductions of share and cash bonuses. Appeal was allowed. Taxpayer made settlement offer, but Minister of National Revenue rejected offer. Taxpayer brought motion for substantial indemnity costs. Judge accepted submission that Minister was prevented from accepting settlement offer and that he did not need to provide reasons for refusal. Minister could not accept offer because of application of concept of legal disability. Taxpayer’s motion was dismissed. Taxpayer appealed. Appeal dismissed. Only offers that, as matter of law, could have been accepted could trigger costs consequences. If, due to legal disability, party could not accept offer then adverse costs consequences should not be imposed on that party. There was no principled basis on which Minister could have accepted that cash bonuses were non-deductible in exchange for treating share bonuses as deductible. Judge correctly ruled that Minister could not concede share bonus issue and that alone was sufficient to conclude that Crown could not accept settlement offer. Judge did not make reviewable error in concluding that Minister was justified in rejecting settlement offer. Judge did not err in law, fail to consider relevant factors, consider irrelevant factors or reach unreasonable conclusion. Judge exercised discretion appropriately.
Transalta Corp. v. R. (Dec. 6, 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-486-12) Decision at 221 A.C.W.S. (3d) 797 was affirmed. 234 A.C.W.S. (3d) 288.
No legitimate expectation of oral hearing before recommendation to revoke appointment
Applicant was advised that respondent proposed to review his appointment to order in light of criminal conviction in United States for fraud and obstruction of justice. Applicant requested in person oral hearing before respondent, but request was refused. Applicant asked respondent to reconsider decision, but it refused. Applicant applied for judicial review. Federal Court Judge found that applicant did not have legitimate expectation that oral hearing would be held prior to recommendation to Governor General that appointment should be revoked. Federal Court Judge found that applicant’s procedural entitlement fell toward low end of scale. Federal Court Judge dismissed application. Applicant appealed. Appeal dismissed. In circumstances, respondent was not required to give applicant oral hearing in order to ensure that he was afforded procedural fairness. Since it was not function of respondent to determine whether applicant’s conviction in United States was proper, respondent’s recommendation would not turn primarily on assessment of applicant’s credibility.
Black v. Advisory Council for the Order of Canada (Nov. 18, 2013, F.C.A., John M. Evans J.A., Trudel J.A., and Webb J.A., File No. A-462-12) Decision at 222 A.C.W.S. (3d) 290 was affirmed. 234 A.C.W.S. (3d) 246.
Causal link between national security and refusal to issue passport to applicant
Applicant was born in Algeria in 1960 and immigrated to Canada in 1987, becoming Canadian citizen in 1993. In May 1999, applicant was arrested in Jordan and extradited to France, where he was convicted on terrorism charges. After serving half of his eight-year prison sentence accused was released and returned to Canada in January 2005. In June 2005, applicant applied for new passport, which was refused by Minister under s. 10.1 of Canadian Passport Order. Applicant brought application for judicial review of decision of Minister, which was allowed in part. Minister successfully appealed to Federal Court of Appeal and leave to appeal to Supreme Court of Canada was refused. Applicant filed second passport application, which was refused. Applicant unsuccessfully brought another application for judicial review. Applicant appealed. Appeal dismissed. It could not be concluded that Ministerial decision did not meet criteria of necessity. There was causal link between national security and Minister’s refusal to issue passport to applicant, who was sentenced in France for crimes closely connected with terrorism, including falsification of passports.
Kamel v. Canada (Attorney General) (Apr. 16, 2013, F.C.A., Pierre Blais C.J., J.D. Denis Pelletier J.A., and Johanne Trudel J.A., File No. A-377-11) Decision at 207 A.C.W.S. (3d) 633 was affirmed. 233 A.C.W.S. (3d) 710
Collision resulted from error in navigation by those in command of tugboat
Ship was being towed by tugboats during process of being berthed in harbour next to shipping company’s vessel. While passing between ship and vessel, line tugboat contacted another tugboat and veered into vessel. Line tugboat damaged vessel’s propeller. Line tugboat owner’s liability was admitted. Shipping company brought action against ship and its owners for damages for negligence based on vicarious liability. Action was dismissed. There was no reviewable error on part of trial judge in concluding that there was no vicarious liability on part owners of ship in respect of collision. There was evidence to support trial judge’s finding that collision resulted from error in navigation by those in command of tugboat. Trial judge did not err in law or commit palpable and overriding error.
Grieg Shipping A/S v. “Dubai Fortune” (The) (Owners) (Sep. 16, 2013, F.C.A., M. Nadon J.A., Pelletier J.A., and Gauthier J.A., File No. A-446-12) Decision at 223 A.C.W.S. (3d) 557 was affirmed. 233 A.C.W.S. (3d) 270.