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Air Law


Test articulated by panel provided no insight into what a segment of the public was

Application for judicial review of panel’s decision upholding agency’s decision to issue administrative penalty against applicant for contravening s. 57(a) of Canada Transportation Act by operating air service without license. Applicant was hotel casino and spa in New Jersey. Between July 2008 and March 2009, two aircraft owned and operated by applicant made ten flights between Atlantic City and Toronto or Montreal to transport some of applicant’s Canadian customers. Agency issued notice of violation and $25,000 penalty. Applicant filed request for review and argued flights were only offered to high-level customers and entirely at applicant’s discretion, so were not publicly available. Agency argued guests were simply subset of public. Member found applicant had not contravened s. 57(a) because it did not publicize flights and members of public could not inquire about them or book them, and no customer had reasonable expectation of receiving flight. Agency appealed and panel found nature of service determined whether flights were publicly available, and customers who received free flights and continued spending at high level would likely receive more free flights, so member’s finding premium clients did not have reasonable expectation of free flights was incorrect. Panel found applicant was operating publicly available service, but reduced penalty to $12,500 as it was first offence. Applicant argued decision was unreasonable as panel failed to articulate intelligible standard. Application allowed. Test articulated by panel, that service available to only segment of public was publicly available, bordered on tautological as it provided no insight into what a segment of the public was. Member’s test, on the other hand, provided useful tool for analyzing whether users were segment of public. While panel provided cogent reason for rejecting member’s test, same could not be said for test it substituted. Panel gave no explanation for preferring vague test and its decision was unreasonable. Not appropriate for court to articulate test given expertise of tribunal, so matter returned to Transportation Appeal Tribunal for redetermination.
Marina District Development Co. v. Canada (Attorney General) (Jul. 18, 2013, F.C., John A. O’Keefe J., File No. T-324-12) 231 A.C.W.S. (3d) 295.

Administrative Law


No doubt that DVD recording was electronic document

Applicant served in Canada Forces. Board confirmed decision to grant applicant two-fifths award for adjustment disorder with mixed mood from aggravated pre-existing medical condition. Application for judicial review was allowed. Rules of procedural fairness were not followed. Board misinterpreted its rules by refusing to allow applicant opportunity to present DVD recording of alleged harassment. There was no doubt that DVD recording was electronic document. Applicant was denied fair opportunity to make arguments. Viewing of video recording could have had impact on awarding of disability pension. Doctor’s report was not on record on which board based decision and report was key element with respect to statutory presumptions concerning applicant.
Grenier c. Canada (Procureur général) (Feb. 28, 2013, F.C., Sean Harrington J., File No. T-1961-11) 231 A.C.W.S. (3d) 399.

Charter of Rights


No automatic rights to serve foreign sentence in Canada

Applicant sentenced to 90 months’ imprisonment in United States for trafficking large amounts of cocaine. Application for transfer of his sentence to Canada approved by American authorities but refused by Minister of Public Safety and Emergency Preparedness Provisions of International Transfer of Offenders Act permitting Minister to refuse application for transfer did not infringe applicant’s mobility rights. Applicant appealed dismissal of his application for judicial review from Minister’s decision. Appeal dismissed. Section 6 of Charter does not provide automatic right to serve foreign sentence in Canada.
Divito v. Canada (Minister of Public Safety and Emergency Preparedness) (Sep. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34128) 109 W.C.B. (2d) 37.



Responsibility for ineffective communication lay with sender

Plaintiff brought claim for unpaid bonus earned for 2011, prior to his resignation from employment effective February 3, 2012. Defendant said bonus for 2011 was not payable under terms of written policy providing that there was no entitlement if employee was not active employee as at date bonus was due for payment, which was March 15, 2012. Claim allowed. Defendant attempted to communicate limiting terms of bonus policy to plaintiff’s attention by means of two e-mails. Neither e-mail contained actual message. Each contained attachment which, if opened, displayed overview and summary of incentive plan. Plaintiff conceded that e-mails were sent to his e-mail account, but denied seeing attachment until it was brought to his attention after Marcy 15, 2012. During his employment, plaintiff received 75 to 100 e-mails per day. Court concluded that more was required than two seemingly unimportant e-mails which were devoid of any message at all. In absence of contractual terms providing otherwise, responsibility for such ineffective communication lay with sender. Defendant was not entitled to rely on limiting terms and accordingly, plaintiff was entitled to payment of bonus in amount of $24,732.
Patterson v. Hanson Hardscape Products Inc. (Aug. 18, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1753/12) 231 A.C.W.S. (3d) 130.

Civil Procedure


No one prepared to assume role as representative plaintiff

Plaintiff sought to discontinue action. This was proposed class proceeding on behalf of group of retirees. Claim related to early retirement program. Plaintiff alleged it was understood and agreed to by retirees that upon death of retiree, retiree’s spouse would continue to receive 100% health coverage benefits until time of death of spouse. Defendant took position that benefits terminated upon earlier of spouse’s remarriage or end of 12 months following death of retiree. Proposed class consisted of small group of employees who took early retirement. Plaintiff’s spouse predeceased him and he was no longer member of proposed class. Plaintiff was not successful in finding another member of class to replace him. Application granted. Leave of court was required for order granting discontinuance. Class was small. There was nothing to suggest that any claims were withheld in reliance on proceeding. Economics of litigation were marginal and it could not proceed without representative plaintiff. No one was prepared to assume role as representative plaintiff. In circumstances it was proper to grant leave to discontinue without prior notice to class, but class was to be given notice of discontinuance.
Westland v. Ontario Hospital Assn. (Jul. 8, 2013, Ont. S.C.J., Lax J., File No. Toronto 06-CV-312902CP) 231 A.C.W.S. (3d) 60.

DNA Identification


Blood rationally and logically linked to unlawful entry and theft

Accused was charged with break, enter and theft of store which had glass pane broken and drops of blood outside of it. Blood was determined to be accused with minimal percentage chance it could belong to his fraternal twin brother. Twin brother testified who was significantly larger than accused and claimed to be driving in different area at time of offence. Accused guilty. Court found no rational or logical connection for blood of accused to be at store as there was no evidence that blood was there earlier. Court noted accused was not required to testify but found blood rationally and logically linked to unlawful entry and theft.
R. v. Marini (Jun. 21, 2013, Ont. S.C.J., W.L. Whalen J., File No. Sault Ste. Marie C57413) 108 W.C.B. (2d) 750.



Even legal owner of property cannot recover possession of chattel by using force

Accused appealed his conviction for assault, alleging reasons for conviction were insufficient. Accused submitted that trial judge’s reasons indicated that he convicted accused either on basis of “deemed assault” provisions of s. 38(2) of Criminal Code or on basis of physical struggle for control of vehicle. Accused submitted that reasons were insufficient to understand on what basis trial judge reached his decision. Accused submitted that if trial judge based conviction on basis of s. 38(2) of Code, he made error of law, and if he convicted accused on basis of struggle for car, verdict was unreasonable because only reasonable conclusion on evidence was that struggle was consensual. Appeal dismissed. There was no issue that accused intentionally applied force to complainant while attempting to leave with motor vehicle. There was no need to revert to deemed assault provisions of s. 38(2) of Criminal Code. Evidence clearly supported finding that application of force was not with consent of complainant. Accused decided to enforce his mother’s claim for disputed vehicle instead of choosing normal legal civil dispute resolution. Trial judge clearly rejected idea that what occurred was consensual fight: rather trial judge found father was simply taking steps to prevent accused from leaving with vehicle which was his right to do. Even legal owner of property cannot recover possession of chattel by using force.
R. v. Poitras (Sep. 5, 2013, Ont. S.C.J., M.Z. Charbonneau J., File No. C2833-2009) 108 W.C.B. (2d) 730.



Officer did not have discretion to act for oblique motive

Adoptive father adopted two teenagers. Quebec Court recognized adoption judgment rendered in Haiti. Applicant received letter indicating citizenship application was granted. Clerical error happened and citizenship application was ultimately refused nearly two years later. Applicant was convicted of offences and removal order was made against applicant. Applicant was permanent resident. Applicant’s application for citizenship for person adopted by Canadian citizen was refused. Applicant’s adoption was found not to comply with rules of country where adoption took place because Institute not Social Affairs Officer approved adoption. Application for judicial review was allowed. Decision was unreasonable. Citizenship officer did not personally verify procedures that applied in Haiti and in Quebec at time of applicant’s adoption. Authenticity of adoption judgment and applicant’s Haitian birth certificate were not in issue. Evidence on record showed officials were uneasy about applicant’s criminality and were working toward outcome. Officer engaged in selective reading of evidence and ignored all evidence submitted in support of citizenship application. Final judgment of foreign court became res judicata particularly since judgment received judicial recognition in Quebec. Applicant was legally adopted. Argument that adoption was entered primarily for purpose of acquiring status was pretext. Adoption was in best interests of child and created genuine parent-child emotional bond. Parental authority of biological parents was transferred to adoptive father. Officer did not have discretion to act for oblique motive or to not approve citizenship application that otherwise met conditions of legislation.
Dufour c. Canada (Minister de la Citoyenneté et de l’Immigration) (Apr. 4, 2013, F.C., Luc Martineau J., File No. T-802-12) 231 A.C.W.S. (3d) 41.



Citizenhip judge could not blend together three methods for determining citizenship

This was appeal of citizenship judge’s decision. Citizenship officer prepared document that described contradictions, irregularities and omissions in citizenship applicants’ record. Case was referred to citizenship judge to determine whether applicants were eligible for citizenship under s. 5(1)(c) of Citizenship Act (Can.), and citizenship judge found they were. Appeal allowed. Citizenship judge’s decision was not adequately reasoned to enable it to be understood where he took numbers or how he calculated numbers. Decision was incomprehensible so error of law was committed. Citizenship judge could chose between three methods for determining citizenship, but he could not blend three together. Due to omissions, contradictions and implausibilities, citizenship judge’s analysis was not reasonable or correct.
Canada (Ministre de la Citoyenneté et de l’Immigration) c. Salameh (Jan. 24, 2013, F.C., Michel M.J. Shore J., File No. T-167-12) 231 A.C.W.S. (3d) 40

Administrative Law


Lack of individual feedback tainted decision

This was application for judicial review of decision of selection board. Applicant applied for three positions. Decision concluded that applicant’s application did not meet pre-requisite criteria for three selection processes. Decision arose after judge ordered reconsideration by differently constituted board. Decision established that members of selection board met with applicant’s supervisor to clarify her tasks without applicant being present; that review of information allowed them to determine that applicant did not meet expectations at pre-requisite stage; and that selection board informed applicant that staffing program did not provide recourse following application of corrective measure. Application granted. Selection board confused corrective measures that might be taken in context of assessment of pre-requisites with corrective measure that had been judge’s decision to refer matter back for consideration by differently constituted board. Case was under de novo review and applicant was entitled to individual feedback. Applicant did not receive reasons for rejection of application, which would have allowed for corrective measures to be taken as program provided. Approach constituted breach of audi alteram partem rule. Lack of individual feedback deprived applicant of advice on professional development needs and it tainted decision. Situation called for completely new assessment.
Tran c. Canada (Procureur général) (May. 1, 2013, F.C., Yvan Roy J., File No. T-728-12) 231 A.C.W.S. (3d) 4.
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