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Employment Insurance

Decisions of umpire

Umpire did, in essence, apply standard of reasonableness to review of board’s decision 

Applicant applied for benefits under Employment Insurance Act (Can.), on basis that he had been employed by L, but had lost employment because of shortage of work. Applicant filed record of employment (ROE) prepared by owner of L. Employment Insurance Commission granted application and applicant received 27 weeks of benefits. Commission then determined that ROE was fraudulently issued by owner to applicant and that he was never employed by L. Commission cancelled applicant’s claim for benefits and ordered him to repay $9,126 plus penalty of $3,698. Applicant appealed. Board of referees upheld determinations of commission and dismissed appeal. Applicant appealed to umpire. Umpire dismissed appeal. Applicant applied for judicial review of umpire’s decision. Application dismissed. Umpire did not specifically enunciate standard upon which he reviewed board’s decision that applicant worked for L, but in essence, umpire reviewed factual question on standard of reasonableness. Evidence before board and umpire was clearly sufficient to support factual finding that applicant was not employed by and did not work for L at times stipulated in ROE that he submitted in support of claim for benefits. That critical factual finding could not be said to have been erroneous finding of fact made by board in perverse or capricious manner or without regard for material before it. Critical finding of fact was reasonable.
Pathmanathan v. Office of the Umpire (Feb. 18, 2015, F.C.A., C. Michael Ryer J.A., Webb J.A., and Near J.A., File No. A-44-14) 250 A.C.W.S. (3d) 263.

Administrative Law

Freedom of information

Extension of time limit to deal with request did not meet requirements of s. 9(1) of Access to Information Act (Can.)

Requester requested from Department of National Defence (DND) access to records relating to sale of certain military assets. DND notified requester that, pursuant to s. 9(1) of Access to Information Act (Can.), it was extending 30-day time-limit set out in s. 7 by 1,110 days in order to deal with request. Requester filed complaint with Information Commissioner of Canada. DND’s extension was found to be invalid, as criteria for extension under s. 9(1)(a) of Act were not all met and time taken under s. 9(1)(b) was unreasonably long. Commissioner applied for judicial review pursuant to s. 42 of Act seeking declaration that DND was in state of deemed refusal for having failed to give access within time-limits set out in Act and for order directing DND to respond to request within 30 days. Federal Court Judge determined that she did not have jurisdiction pursuant to s. 42 of Act to issue declaration. Federal Court Judge concluded that, as long as there was compliance with time extension that was taken, there could be no deemed refusal pursuant to s. 10(3), regardless of reasonableness of extension. Commissioner appealed. Appeal allowed. Reading of s. 10(3) of Act that would prevent judicial review of extension was not what Parliament intended. Federal Court Judge’s interpretation meant that length of time-limit would lay exclusively in hands of government institution that asserted it and escape judicial review, regardless of duration. Section 7 of Act required government institution to respond to information request within 30 days. Requirement was subject to exceptions including power that might be exercised by government institution to extend time pursuant to s. 9 but period taken must be reasonable, considering circumstances set out in s. 9(1)(a) and/or s. 9(1)(b). Deemed refusal arose whenever initial 30-day time-limit expired without access being given in circumstances where no legally valid extension had been taken. Right to judicially review validity of extension arose pursuant to ss. 41 and 42 of Act upon expiry of 30-day time-limit and Federal Court had jurisdiction to entertain application for judicial review and to consider validity of extension of time DND asserted. Extension did not meet requirements of s. 9(1) of Act. DND was declared to have entered into state of deemed refusal pursuant to s. 10(3) of Act upon expiration of 30-day time-limit set out in s. 7.
Canada (Information Commissioner) v. Canada (Minister of National Defence) (Mar. 3, 2015, F.C.A., Marc Noël C.J., David Stratas J.A., and A.F. Scott J.A., File No. A-163-14) Decision at 238 A.C.W.S. (3d) 789 was reversed.  250 A.C.W.S. (3d) 183.

Sexual Offences

Sexual assault

Young complainant was credible witness

Trial of accused on charges of one count of sexual assault and one count of touching person under 14 years of age for sexual purpose. Offences were alleged to have occurred between November of 2009 and May of 2010. Female victim, named AD, was three years old at time of incidents, as she was born in August 2006. Accused was 35 years old when he was alleged to have committed offences and he was currently 39. At time of offences accused was in domestic relationship with woman named KK who was best friend of victim’s mother JB. Despite their common law relationship KK and accused occupied separate premises. AD and JB slept over at KK’s unit on many occasions. In May 2010 AD made spontaneous disclosure about things that accused did to her. On August 12, without prompting, AD made anatomically correct drawing of accused’s penis and testicles and drawing also showed something coming out of penis. She also provided further details of accused’s conduct. AD went to police on August 14 and AD provided video statement to police on August 15, 2010. AD testified that incidents happened when she and her mother slept over at KK’s home when everyone else was asleep. Accused convicted. Despite her young age AD had remarkable ability to remember specific details about these incidents. Her version of incidents never wavered at any point in time. AD was credible witness and, having made this finding, accused’s claim that he did not commit offences was rejected.
R. v. Bissonnette (Jun. 10, 2014, Ont. S.C.J., D. Cornell J., File No. null) 119 W.C.B. (2d) 426.

Charter of Rights

Fundamental justice

Accused’s statement to police was admissible

Accused charged with 15 sexual offences against complainant. Defence argued that statement should be excluded because accused’s right to remain silent under s. 7 was infringed. At time of allegations that accused had kissed, fondled and had oral sex with complainant, she would have been 15 years old while accused would have been 35. Allegations related to five discrete encounters with one being at home of accused’s romantic and business partner, where accused lived. Accused was informed he was being charged and told to turn himself in following morning, and which time he would be arrested and charged with three sexual offences. Detective told accused he should contact lawyer before coming to police station, but that in any event, he would be given opportunity to contact lawyer at police station. Accused relayed that he had received half hour legal consultation as to his rights over lawyer referral service by telephone night before. Accused was arrested, read his rights, and processed, spoke with counsel for 20 minutes and then interviewed for approximately one hour and 20 minutes. Accused’s statement was mostly exculpatory but he did make incriminating admissions. Accused repeatedly stated he did not wish to answer any more questions, but was convinced to do so on several occasions. Accused appeared alert and focus, with nothing impairing his faculties. Statement admissible. Court found there were no threats or inducements and that instance of detective explaining that in some circumstances where police were concerned that there may be other complainants who had not yet come forward, they did media release publishing name of person accused of sexual offences, was not threat but real concern that accused in past may have inappropriately committed sexual offences against other minors, in addition to complainant and accused’s partner’s daughter. Although interview got heated in end, accused gave as well as he got, and shut down interview. On virtually all of occasions when accused said that he was not going to answer any more questions, he continued to have conversation with detective, pushing back against her allegations and, at times, raising questions of his own, demonstrating exercise of free will. Accused showed considerable control throughout interview and never strayed from his denial that he had not engaged in any sexual behaviour with complainant. Accused exercised his rights by agreeing to speak about some issues and refusing to answer questions about others. Detective utilized number of standard police tactics none of which crossed line into area of trickery that would shock conscience of community.
R. v. H. (J.J.) (Feb. 19, 2015, Ont. S.C.J., Aitken J., File No. 12-SA5106) 119 W.C.B. (2d) 375.

Constitutional Law

Charter of Rights

Preventing school from teaching Catholicism from own perspective seriously interferes with religious freedom

Private Catholic high school, has, as part of mandatory core curriculum, required program on Ethics and Religious Culture (ERC).  ERC, with stated objectives of “recognition of others” and “pursuit of the common good,” teaches beliefs and ethics of different world religions from neutral, objective perspective. Minister of Education, Recreation and Sports may, pursuant to s. 22 of regulation respecting the application of the act respecting private education (Que.), grant exemption from ERC program if proposed alternative program deemed to be “equivalent.” School requested exemption, proposing alternative course be taught from perspective of Catholic beliefs and ethics. Minister denied request. School application for judicial review of minister’s decision granted. Superior Court held that minister’s refusal infringed school’s right to religious freedom. Quebec Court of Appeal allowed Quebec’s appeal, finding minister’s decision reasonable. School appealed, modifying its proposal by agreeing to teach doctrines and practices of other world religions neutrally but teaching about ethics of other religions from Catholic perspective. Minister’s position, that no part of program could be taught from Catholic perspective, remained same. Appeal allowed. Case required balancing between robust protection for values underlying religious freedom with values of secular state. Requiring school to speak about its own religion in terms defined by state rather than own understanding demonstrably interferes with manner in which community can teach and learn about Catholic faith and undermines liberty of those who have chosen to give effect to collective dimension of religious beliefs by participating in denominational school. Preventing school from teaching and discussing Catholicism from own perspective does little to further ERC program’s objectives, but seriously interferes with religious freedom. Engagement with individual’s own religion on own terms cannot be presumed to impair respect for others. It is not breach of religious freedom to require school to teach about ethics of other religions from neutral perspective. Program goals of ensuring respect for different religious beliefs requires students to learn about doctrines and ethics of other world religions in neutral and respectful way. Given that minister’s decision as whole must reflect proportionate balancing of protections from Canadian Charter of Rights and Freedoms and statutory objectives, minister’s decision is unreasonable.
Loyola High School v. Quebec (Attorney General) (Mar. 19, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35201) Decision at 234 A.C.W.S. (3d) 338 was reversed.  250 A.C.W.S. (3d) 248.

Air Law


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.


Boards of education

Plaintiff granted judgment against school board in accordance with jury’s verdict

Plaintiff student sexually assaulted by another student in school washroom. Student and family members’ commenced action against defendant school board alleging board had failed to properly supervise students. They also alleged board’s post-incident acts or omissions had resulted in adverse effects. During course of jury trial, parties agreed jury should be asked if board had breached standard of care and, if so, how, specifically way or ways in which board had failed to act as careful or prudent parent. Jury found board had breached standard of care after incident and referred to s. 2.6 of Safe Schools Policy and s. 12 of Safe Schools Procedure to explain how. Jury awarded damages to student, mother and grandmother but not brothers or grandfather. Counsel for plaintiffs sought judgment in accordance with verdict pursuant to s. 108(5)(b) of Courts of Justice Act (Ont.) and R. 52.09 of Rules of Civil Procedure (Ont.). Board opposed, claiming jury had misunderstood and failed to comply with court’s instructions. Board submitted there was no evidence of breach of s. 2.6 of Policy and no evidence that breach of s. 12 of Procedure had caused any damage. Judgment for plaintiffs. Standard of review of civil jury verdict exceptionally high. Verdict to be broadly interpreted. From that verdict, it appeared jury had agreed with at least one of plaintiffs’ theories, namely that board had responded inadequately to incident and that inadequate response had caused damage to student, mother and grandmother. Evidence supported those findings. Court not entitled to usurp jury’s role or weigh reasonableness of evidence. Court not in position to disregard verdict.
Prentice v. Thames Valley District School Board (Jan. 30, 2015, Ont. S.C.J., A.D. Grace J., File No. 1467/10) 250 A.C.W.S. (3d) 244.

Civil Procedure


Limitations defence was not advancement of new claim

Plaintiff operated private school. It accepted school-related payments from its students by way of credit cards and debit. Defendant PC was retained by plaintiff to provide merchant services for processing and settling of debit and credit transactions. Plaintiff alleged that some $91,000 in American Express transactions were not properly credited to its bank account, due either to fault of Amex Bank or PC, or both. Plaintiff’s action was commenced on July 8, 2010. Only defendant Bank of Montreal advanced limitations defence. Discoveries were conducted in September 2013, and action was set down for trial in February 2014. At pre-trial in October 2014, Amex Bank and PC indicated their intention to amend their pleadings to include limitations defence. Amex Bank and PC moved for leave to amend their respective statements of defence. Motion granted. Limitations defence was not advancement of new claim. Right to advance defence based on passage of time was not claim to remedy injury, loss or damage. It was defence against such claim. There was absence of evidence of actual prejudice. Discoveries had already covered limitations issue and would not need to be continued.
1309489 Ontario Inc. v. BMO Bank of Montreal (Feb. 17, 2015, Ont. S.C.J., C. Boswell J., File No. CV-10-99670-00) 250 A.C.W.S. (3d) 230.

Judgements and Orders


University satisfied test for setting aside default judgment, writ of execution and garnishment

On April 3, 2012, plaintiff obtained $163,000 default judgment against defendant university. On April 12, 2012, plaintiff obtained writ of execution, and on April 16, 2012, it issued garnishment notice, from which it recovered $163,000. University moved to set aside default judgment, writ and garnishment. Motion granted. Plaintiff’s action alleged that parties had entered into agreement for plaintiff to assist university in recruitment of students and share tuition fees. It claimed university had breached its fiduciary duty by cancelling agreement and establishing satellite campus in Toronto without involvement of plaintiff. In its proposed statement of defence, university claimed it had cancellation rights under arrangement if certain levels of recruitment were not achieved or minimal levels were not reached. University said that it was indebted to plaintiff for only $52,000, and thus, it had been overbilled. Thus, save for $52,000, university had shown defence for claim upon which default judgment was based. There was also genuine issue for trial about whether relationship between parties was fiduciary. University satisfied test for setting aside default judgment, writ of execution and garnishment. Save for $52,000, garnished monies should be returned to university.
Education Invention Centre of Canada v. Algoma University (Feb. 24, 2015, Ont. S.C.J., Perell J., File No. CV-11-433568) 250 A.C.W.S. (3d) 112.
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