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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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Administrative Law

DUTY TO ACT FAIRLY

Decision to revoke applicant’s security clearance was quashed

Applicant had worked for ground handling company that operated out of Lester B. Pearson International Airport in Toronto for past 16 years. She also held part-time job from October 2012 to April 2014 as ramp agent. Both positions required applicant to hold valid transportation security clearance, which allowed her to access restricted areas at airport. On November 8, 2013, Chief of Security Screening Programs for Transport Canada wrote to applicant saying that she was being investigated for associating with leader of drug importation ring at airport and that she herself was suspect in criminal investigation for drug importation. Applicant denied involvement in any drug smuggling. On April 24, 2014, applicant was advised of decision to cancel her security clearance. Applicant was immediately terminated from her part-time job. Applicant applied for judicial review of decision to cancel her security clearance. Application granted. Respondent failed to discharge requirement of procedural fairness. Applicant had lost her employment on basis of allegations that sometime perhaps between 2007 and 2009, or perhaps subsequent to 2009 and 2013, she associated, in some unspecified way, with certain unspecified individual in major drug importation scheme at airport. Other than minor charge many years ago for theft of children’s Tylenol from drug store, applicant had no criminal record. She had never been interviewed in respect of alleged criminal activity relied on in decision letter. She had never been charged in respect of those matters. Applicant was unable to respond to case against her, as she knew neither time, date, nor precise activity which gave rise to revocation. Advisory Body’s conclusion from absence of transactions in applicant’s bank account consistent with drug trafficking that applicant was remunerated by cut of drugs themselves was, in absence of further information, neither transparent nor rational. Decision to revoke applicant’s security clearance was quashed.
Meyler v. Canada (Attorney General) (Mar. 20, 2015, F.C., Donald J. Rennie J., File No. T-1197-14) 250 A.C.W.S. (3d) 542.

Aboriginal Peoples

CROWN RELATIONSHIP

Crown gave First Nation notice of mine expansion project and afforded opportunity for consultation

Project was proposed expansion of open pit oil-sands mine. Project would be carried out on traditional lands of Athabasca Chipewyan First Nation (ACFN) Crown invited the ACFN to express its concerns to joint review panel charged with conducting project’s environmental assessment. Minister decided project was justified subject to conditions. ACFN asserted Crown made decision in breach of its duties to consult and accommodate ACFN. ACFN asserted Crown rushed through consultation process and issued decision before completing consultation. ACFN asserted process lacked transparency because Crown kept from ACFN its advice to Cabinet, proposed project conditions and information it received. ACFN asserted Crown breached its commitments to CFN during consultation process. Applicant sought judicial review. Application dismissed. Crown gave ACFN notice and afforded ACFN opportunity for consultation. ACFN participated throughout six-year process. Crown seriously considered views of ACFN. Measures Crown took to accommodate ACFN corroborated its serious consideration of ACFN’s concerns. Crown made changes that addressed concerns ACFN raised during consultation. Crown accommodated ACFN’s concerns by imposing long list of conditions. Duty to accommodate did not guarantee Aboriginal groups everything that they wished to obtain. Federal-provincial distribution of powers limited Crown’s ability to accommodate the ACFN because lands and mineral rights belonged to province of Alberta. Consultation process was not rushed. Record did not reveal lack of transparency, but showed that Crown repeatedly shared information, replied to ACFN’s correspondent, met ACFN’s representative and made policy decisions in light of ACFN’s concerns. Applicant was not entitled to disclosure of Minister’s advice to Cabinet and Crown did not have to justify Cabinet’s decisions on project. Claim that Crown created and deceived reasonable expectation that panel review process would heavily inform Crown’s decision-making for project was rejected. Record did not support contention that Crown was insufficiently responsive to ACFN’s concerns. Record did not reveal insufficient attention by Crown to project’s cumulative effects. Evidence established fact that ACFN will continue to be consulted in future.
Athabasca Chipewyan First Nation v. Canada (Minister of the Environment) (Dec. 9, 2014, F.C., Danièle Tremblay-Lamer J., File No. T-13-14) 250 A.C.W.S. (3d) 541.

Charter of Rights

FREEDOM OF EXPRESSION

Denial of media’s access to inmate for purpose of interview was reasonable

Application by three media companies for judicial review of decision of prison warden who refused their request to interview inmate named OK. Applicants created joint enterprise for purpose of interviewing OK to produce documentary film about his story. Request was denied because it would result in significant disruptions to institution and it would endanger its security. Inmates would have to be confined to their living units for duration of interview and this would affect work, school and other program routines and if interview was conducted outside business hours it would disrupt inmates’ access to leisure activities. This could spark unrest among inmate population. OK kept low profile at institution but release of interview would result in additional security concerns within institution and safety concerns for OK. At issue were rights of applicants to freedom of expression under s. 2(b) of Canadian Charter of Rights and Freedoms and public’s right to know. Application dismissed. Decision to deny applicants’ access to OK for purpose of interview was reasonable and sufficient reasons were provided for that decision. Right to freedom of expression was not absolute and it was subject to reasonable limits. In context of penitentiary this right had to be balanced against need to protect security of institution and safety of persons, which included staff, prison population and any particular inmate. Penitentiaries were heavily restricted environments and members of public could only enter to visit inmates under very strict conditions. Penitentiary was not place where public had expectation of exercising its right to freedom of expression. Warden was called upon to balance freedom of expression against security and safety imperatives. She had experience and expertise to make such discretionary decisions and her decision was owed significant deference.
Canadian Broadcasting Corp. v. Warden of Bowden Institution (Feb. 13, 2015, F.C., Richard G. Mosley J., File No. T-1651-14) 119 W.C.B. (2d) 465.

Aboriginal Peoples

HUNTING AND FISHING RIGHTS

Interlocutory injunction to prohibit reopening of fishery granted

In 2003, respondent Minister closed commercial herring fishery in Haida Gwaii, archipelago off west coast of British Columbia, due to concern about weak stocks. Fishery remained closed while annual stock assessments conducted by federal Department of Fisheries and Oceans (DFO) failed to demonstrate adequate level of abundance. However, in 2011, DFO introduced new method of calculating abundance that lowered level at which fishery could be authorized. For 2014 season, Department of Fisheries and Oceans recommended against reopening on basis there was insufficient evidence of durable and sustained recovery. Minister did not accept recommendation and authorized reopening. Applicants, representatives of indigenous people of Haida Gwaii, whom Supreme Court of Canada had acknowledged had strong prima facie case of Aboriginal title to all of Haida Gwaii, and who had entered various interim agreements with federal and provincial governments regarding management of lands, waters and resources of area, asked commercial fishermen not to fish that year. Fishermen agreed. In 2014, on strength of one forecast that indicated stocks would be above level at which fishery could be authorized, and notwithstanding evidence of decline in stocks between 2013 and 2014, and predicted decline between 2014 and 2015, DFO recommended limited fishery (harvest rate of 10 per cent) in 2015. Applicants commenced action and applied for interlocutory injunction to prohibit reopening of fishery on basis herring stocks, and their Aboriginal rights, would be endangered if commercial fishery allowed. Application allowed. Respondent acknowledged that regulation of fishery and duty to consult and accommodate Aboriginal groups constituted serious issues. High degree of uncertainty in forecasts, combined with fact stocks had declined, and were expected to decline further despite there having been no fishing, made it more likely irreparable harm would occur if commercial fishery opened in 2015. Potential for real and serious risk of harm even greater when one considered that ability to fish roe herring central to applicants’ culture, traditions and way of life, and that applicants had strong prima facie case of aboriginal title. Given that context, failure to consult meaningfully with applicants also constituted irreparable harm. Given agreements in place, as well as special conservation and ecological concerns, no question balance of convenience favoured applicants. Applicants should not be required to provide undertaking as to damages in circumstances. Minister (or DFO) prohibited from opening commercial herring fishery for 2015 season.
Haida Nation v. Canada (Minister of Fisheries and Oceans) (Mar. 6, 2015, F.C., Michael D. Manson J., File No. T-73-15) 250 A.C.W.S. (3d) 361.

Air Law

Airports

Refusal to give security clearance upheld on judicial review

In December 2012, applicant began working at Lester B. Pearson International Airport in part-time position with Servisair. He began working for Air Canada in part-time position in March 2013, and was working full-time by April 2013. On January 15, 2013, he applied for transportation security clearance required to work airport. Officials at Transportation Security Clearance Program requested Law Enforcement Records Check from RCMP. RCMP reported that applicant had been charged with weapons offences and drug offences in 2007, but that charges had been withdrawn. RCMP also reported that known associates of applicant all had previous criminal convictions relating to violence, drugs, or weapons. Applicant’s application was referred to Transportation Security Clearance Advisory Board. Advisory Board made recommendation that Minister refuse clearance based on conclusion that applicant may be prone or induced to commit act or assist or abet another person to commit act that may unlawfully interfere with civil aviation. Applicant sought judicial review of decision. Application dismissed. While it may seem harsh to applicant who had conducted himself appropriately since his involvement or association with criminal elements ending in 2007, Minister was entitled to rely upon those events given Ministerial discretion to refuse to give security clearances based on low threshold of whether person may be prone or induced to unlawfully interfere with civil aviation. Court could not substitute its opinion for persons who were experienced in those matters. Decision fell within range of reasonable acceptable outcomes based on evidentiary record that was before Advisory Board and Ministerial delegate and was justified by transparent and intelligible reasons.
Christie v. Canada (Attorney General) (Feb. 19, 2015, F.C., Peter Annis J., File No. T-1285-14) 250 A.C.W.S. (3d) 185.

Aboriginal Peoples

Crown relationship

Decision to appoint third party management to ensure delivery of essential social programs was reasonable

Application for judicial review to set aside decision of Minister of Indian Affairs and Northern Development Canada, as carried out by Aboriginal Affairs and Northern Development Canada (AANDC) to place applicant, Thunderchild First Nation (TFN) under third party management following its refusal to sign Aboriginal Recipient Funding Agreement (ARFA) for 2014-2015 fiscal year. TFN chose not to sign ARFA because of previous stated concerns about absence of consultation; fact that agreement was affording wider discretion to Minister; insufficient funding; and requirement that Band Council prepare consolidated audit. Decision had been taken to place TFN under third party management to ensure that AANDC programs and services continued to be delivered to people of TFN. Application dismissed. AANDC made significant efforts to find alternative solution and to come to agreement with TFN for funding its programs and services. While court agreed that TFN did not lack ability to manage its own finances, it was lack of ARFA that was determinative. Given circumstances, decision to appoint third party management to ensure delivery of essential social programs was reasonable and fell within range of possible, acceptable outcomes. TFN chose not to participate in review of process by which AANDC addressed concerns of First Nations of Saskatchewan with respect to ARFA for 2014-2015 fiscal year. TFN could not now rely on fact that it was not consulted in meaningful and serious manner. Minister neither failed to observe principles of natural justice nor his duty to consult and accommodate.
Thunderchild First Nation v. Canada (Minister of Indian Affairs and Northern Development) (Feb. 18, 2015, F.C., George R. Locke J., File No. T-791-14) 250 A.C.W.S. (3d) 181.

Air Law

AIRPORTS

Cancellation of employee’s transportation security clearance upheld on judicial review

Employee worked for employer that operated out of airport. Employee had held transportation security clearance (TSC) since 2001. In 2013, Transport Canada received report from police indicating employee was involved in organized crime group that imported and exported drugs. Report noted lack of sufficient evidence to charge employee, but that he continued to facilitate movement of drugs with assistance of co-workers. Employee was notified his TSC was under review and was provided with information in report and given opportunity to make submissions. Employee denied any involvement in alleged incidents. Director General of Aviation Security cancelled employee’s TSC based on police report and recommendation of TSC Advisory Body. Employee brought application for judicial review. Application dismissed. Employee had not been denied procedural fairness, and Director General’s decision was reasonable. Duty of procedural fairness was at lower end of spectrum and was satisfied in this case. Employee knew allegations against him and had opportunity to make submissions. Decision was based on well-documented and extensive evidence with no suggestion of bias. Director General had wide discretion under s. 4.8 of Aeronautics Act (Can.), with respect to TSC. Decision was based on reasonable belief that employee could unlawfully interfere with civil aviation in accordance with TSC Program Policy. Director General was entitled to rely on police report, which was detailed and based on information from multiple law enforcement sources. Criminal convictions were not benchmark to justify revocation of TSC. Further, conduct at issue did not have to be direct interference with aviation security.
Brown v. Canada (Attorney General) (Nov. 14, 2014, F.C., Catherine M. Kane J., File No. T-1800-13) 250 A.C.W.S. (3d) 10.
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