PUBLIC SERVICEBoard did not have jurisdiction to hear applicant’s grievanceApplicant grieved competition for Parole Officer position. Grievance alleged that employer violated s. 5 of Public Service Employment Act (Can.) (“PSEA”); Article 37 of applicant’s collective agreement (non-discrimination clause); and Employment Equity Act (Can.). By time grievance was adjudicated, applicant indicated he was only seeking declaration that employer violated non-discrimination clause of his collective agreement and Canadian Human Rights Act (“CHRA”), as well as damages for that violation. Employer objected to jurisdiction of Public Service Labour Relations Board to hear grievance. Board dismissed applicant’s grievance on grounds that it did not have jurisdiction to hear grievance, pursuant to s. 208(2) of Public Service Labour Relations Act (Can.) (“PSLRA”). Application for judicial review was dismissed. Board was correct to find that it did not have jurisdiction to hear applicant’s grievance. Section 208(2) of PSLRA clearly precluded presentation of grievance where another administrative procedure for redress was provided under another PSLRA of Parliament other than CHRA. Facts giving rise to applicant’s grievance related to staffing appointment. Section 8 of PSEA, which was in force at time of applicant’s grievance, granted exclusive authority over appointments to Public Service Commission. Section 21 of PSEA granted unsuccessful candidates right to appeal any appointment decision to commission. It was this process - appeal under s. 21 of PSEA that applicant should have pursued for redress in relation to employer’s appointment decision. Brown v. Treasury Board (Correctional Service of Canada) (Oct. 20, 2011, F.C., Kelen J., File No. T-1851-09) 208 A.C.W.S. (3d) 323 (14 pp.).
GROUNDSClaim that auditors pilfered boxes of documents not substantiatedMotion by director of taxpayer for order for contempt. Minister assessed director under Excise Tax Act (Can.) as liable for tax debt of corporation. Director filed appeal. Director’s motion for disclosure of certain documents was granted. Motion dismissed. Director did not provide even prima facie case that order for documents had not been complied with. Director provided list of documents he claimed were being withheld, but this list suffered from vagueness. Claim that auditors pilfered boxes of documents was not substantiated and could not form basis for contempt order against Crown. Order granting appeal would be inappropriate on preliminary motion. Exercise of due diligence was not proper ground for allowing appeal and could only be determined with full hearing. Minister had not breached costs order. Dismissal of tax-related criminal charges against director did not provide support for motion.
Lougheed v. Canada (Aug. 26, 2011, T.C.C., Woods J., File No. 2006-2031(GST)G) 96 W.C.B. (2d) 278 (10 pp.).
ASSAULTING PEACE OFFICERAccused was entitled to resist officerIn course of robbery investigation, officers went to accused young person’s house to get his side of story. Officers were invited into house by accused’s mother. When officer entered accused’s bedroom, accused took step to follow him. In attempt to stop accused from entering bedroom second officer put his arm in front of accused. Accused pushed officer’s arm away, knocking officer off balance. Third officer intervened and accused attempted to swat him away. Officers wrestled accused to ground and placed him under arrest. Charges dismissed. No interpretation other than that officer conducted search of accused’s bedroom without consent or search warrant. No exigent circumstances existed to justify search. Officer engaged in unauthorized search of accused’s bedroom. Second officer’s attempt to prevent accused from entering bedroom was unlawful interference with accused’s liberty and property. Accused was entitled to resist officer. Resistance by accused was mild and no more than what was required to proceed past officers blocking his path. Accused’s resistance did not involve unreasonable force. Accused’s resistance to unauthorized search without using unreasonable force did not attract criminal liability.
R. v. R. (T.) (Aug. 23, 2011, Ont. C.J., Jones J., File No. YO 22900-00) 96 W.C.B. (2d) 444 (8 pp.).
PRIOR JUDICIAL DECISIONGovernment entitled to rely on judgments as precedents but not tender them into evidenceMotion by Ontario government for ruling on admissibility of prior judgments from other provinces as evidence on jurisdictional motion. Ontario government enacted Tobacco Damages and Health Care Costs Recovery Act, 2009 (Ont.), permitting actions to be brought against tobacco companies for recovery of tobacco-related health care costs. Ontario government commenced action in Ontario against 14 tobacco companies for recovery of $50 billion in tobacco-related health care costs. Similar proceedings had been commenced in British Columbia and New Brunswick by governments of those provinces. Six tobacco companies claimed to be foreign companies beyond jurisdiction of provinces. Foreign tobacco companies unsuccessfully brought motions in British Columbia and New Brunswick challenging jurisdiction of those courts. Foreign tobacco companies commenced motion in Ontario for order setting aside service ex juris of statement of claim and staying or dismissing action as against them on basis of lack of jurisdiction. Ontario government wanted to tender judgments of British Columbia and New Brunswick courts into evidence rather than just use them as authorities. Motion dismissed. Ontario government was entitled to rely on judgments as precedents but not tender them into evidence. Authority relating to use of factual findings in prior judgment was distinguishable. In present case, Ontario government was not seeking to rely on factual findings but rather legal analysis and conclusions. Ontario government was unable to point to any factual findings underlying conclusions in British Columbia and New Brunswick judgments that there was real and substantial connection with those provinces.
Ontario v. Rothmans Inc. (Sep. 20, 2011, Ont. S.C.J., Conway J., File No. CV-09-387984) 207 A.C.W.S. (3d) 485 (40 pp.).
GOODS AND SERVICES TAXWhile transfer amounted to negligence, action did not constitute gross negligenceAppeal by taxpayer from reassessment by Minister. Taxpayer transferred house it was building to its two shareholders. Taxpayer did not collect or remit GST on transfer. Minister assessed taxpayer on basis that it transferred both legal and beneficial interest in property to its shareholders, thereby resulting in supply of property on which GST was required to be collected pursuant to ss. 165 and 221 of Excise Tax Act (Can.). Minister imposed gross negligence penalty. Appeal allowed in part. Matter was referred back to Minister for reassessment on basis that s. 285 gross negligence penalty be deleted. Taxpayer was liable to collect and remit GST on transfer of property. Taxpayer failed to establish requisite certainty of intention establishing that property was in trust for taxpayer subsequent to transfer of title. While transfer by taxpayer amounted to negligence, action did not constitute gross negligence. Shareholders held subjective belief that taxpayer maintained some interest in property given that it continued to pay expenses related to it. Canpar Developments Inc. v. Canada (Aug. 2, 2011, T.C.C., Paris J., File No. 2009-3264(GST)I) 205 A.C.W.S. (3d) 588 (7 pp.).
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REAL PROPERTYCourt did not have jurisdiction to interfere with interests in landApplication by husband for order for exclusive possession of matrimonial home. Parties were status Indians. During marriage, parties built home on land situated on reserve. Both parties had modest incomes, and neither party could afford to purchase interest of other. Application dismissed. Court did not have jurisdiction to interfere with interests in land on which matrimonial home was located. It appeared that it was band that ultimately decided who could be in possession of property. Band had not supported husband in his attempts to regain possession of home. Court did not have assurance that band would honour order granting possession to either of parties.
Syrette v. Syrette (Oct. 14, 2011, Ont. S.C.J., Koke J., File No. 168/05) 208 A.C.W.S. (3d) 361 (10 pp.)
LIBEL AND SLANDERInsert of hyperlinks could not amount to publicationAppellant claimed he had been defamed in various articles that appeared on Internet. Respondent operated web site and authored article that hyperlinked alleged defamatory articles. Appellant took position that when hyperlinks created, respondent became publisher of impugned articles found at hyperlinked sites. Trial judge dismissed appellant’s action for defamation on basis that appellant failed to prove publication of defamatory material. He found that hyperlinking did not amount to publication. Majority of Court of Appeal dismissed appellant’s appeal, finding no basis for presumption of publication of hyperlinked articles and mere fact that respondent hyperlinked impugned sites did not make him publisher. Appeal to Supreme Court of Canada dismissed. To prove publication element of defamation, plaintiff must establish defendant has, by any act, conveyed defamatory meaning to single third party who has received it. Form defendant’s act takes and manner in which it assists in causing defamatory content to reach third party are, traditionally, irrelevant. Breadth of activity captured by traditional publication rule vast and recent jurisprudence suggested some acts so passive they should not be held to be publication. Question is whether simple reference, like hyperlink, to defamatory information is type of act that can constitute publication. Reference to other content fundamentally different from other acts involved in publication as does not involve exerting control over content. Communicating something distinguished from merely communicating that something exists. Hyperlinks are, essentially, references. Content of secondary article often produced by someone other than person who inserted hyperlink in primary article. Inserting hyperlink gives primary author no control over content in secondary article. When person follows link they are leaving one source and moving to another. Ease with which referenced content can be accessed does not change fact that, by hyperlinking, individual referring reader to other content. Individuals may attract liability for hyperlinking, however, if manner in which they have referred to content conveys defamatory meaning. Nothing on defendant’s page itself alleged to be defamatory. Insertion of hyperlinks, by itself, could not amount to publication. Crookes v. Wikimedia Foundation Inc. (Oct. 19, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33412) Decision at 311 D.L.R. (4th) 647, 181 A.C.W.S. (3d) 389 was affirmed. 206 A.C.W.S. (3d) 640 (71 pp.).
STAY OF PROCEEDINGSApplication judge failed to consider prejudice caused to alleged contemnorBoth appellant and respondent sought same relief, namely that stay imposed by application judge be set aside and that matter be returned to him for decision based on record before him. While judge has inherent jurisdiction to control process before him, and inherent jurisdiction to adjourn or stay proceeding, that discretion must be exercised judicially, with regard to potential prejudice caused by adjournment or stay. Here, application judge failed to consider prejudice caused to alleged contemnor, which was entitled to prompt resolution of allegations against it, based on evidence parties chose to put before court. Appeal was allowed. Stay imposed by application judge was set aside and matter ordered returned to him for decision on basis of record before him.
Bremsak v. P.I.P.S.C. (Sep. 20, 2011, F.C.A., Dawson, Pelletier and Noel JJ.A., File No. A-160-11) 207 A.C.W.S. (3d) 262 (4 pp.).
AGREEMENTS FOR TRANSFER TO PENITENTIARYObjectives of international transfer of offenders scheme could not be achieved through transferApplication by Canadian prison inmate, who was incarcerated in an American prison after he was convicted of conspiracy to distribute more than five kilograms of cocaine, for judicial review of a decision of Minister of Public Safety and Emergency Preparedness. Minister refused to approve applicant’s application under International Transfer of Offenders Act (Can.) to be transferred to Canada to serve remainder of his sentence. Reason was that objectives of international transfer of offenders scheme could not be effectively achieved through applicant’s transfer. Application dismissed. Minister properly exercised his discretion. Minister weighed purposes of Act, applicant’s positive and negative circumstances and relevant factors. One could reasonably conclude, based on information contained in record, that there was a factual basis for Minister’s decision and he was entitled to act as he did. Applicant was not denied procedural fairness. Court therefore deferred to Minister’s decision. Newberry v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 3, 2011, F.C., Shore J., File No. T-1649-10) 97 W.C.B. (2d) 470 (19 pp.).
DISTRIBUTION OF LEGISLATIVE AUTHORITYDivision of powers does not exempt clinic from application of Controlled Drugs and Substances ActIn partnership with non-profit organization, health authority providing injection supervision service to chronic drug addicts at Insite. Health care workers at Insite exempted by Minister of Health from prosecution for possession and trafficking offences, but Minister subsequently revoking exemption. Division of powers does not exempt clinic, as health facility, from application of Controlled Drugs and Substances Act as exercise of federal jurisdiction over criminal law. Minister’s revocation of exemption, however, contravened s. 7 Charter rights of Insite staff and addicts using its services. PHS Community Services Society v. Canada (Attorney General) (Sep. 30, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33556) Decision at 87 W.C.B. (2d) 39 affirmed. 96 W.C.B. (2d) 322 (78 pp.).
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Case Law
For a snippet of this week's stories, check out the Ontario Legal News Update. 
For a snippet of this week's stories, check out the Ontario Legal News Update. 
For a snippet of this week's stories, check out the Ontario Legal News Update. 