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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reported that applicant had been charged with weapons offences and drug offences in 2007, but that charges had been withdrawn.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.

Education

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

Pleadings

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

SETTING ASIDE

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.

Appeal

Final or interlocutory order

Decision granting leave to amend statement of claim was interlocutory in nature

Plaintiff sued defendant in negligence, alleging that defendant had actual and constructive knowledge of fraudulent dealings by third party that caused plaintiff to lose about $17 million. Judge struck out portions of statement of claim that alleged negligence as result of constructive knowledge on basis that circumstances of case were not capable of establishing relationship of sufficient proximity to found duty of care. Plaintiff brought motion to amend statement of claim to reintroduce allegations grounded in constructive knowledge. Plaintiff was granted leave to amend statement of claim. Defendant appealed. Plaintiff brought motion to quash appeal on basis that order was interlocutory, not final. Appeal quashed. Defendant misconceived nature of motion judge’s decision. Decision allowed matter to proceed to trial and did not have effect of depriving defendant of substantive defence. It remained open to defendant to advance substantive defence to argument that duty to non-customer could be created based on constructive knowledge and that constructive knowledge could be made out on facts. Decision was interlocutory in nature and appeal lay to Divisional Court.
Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank (Feb. 23, 2015, Ont. C.A., John Laskin J.A., Paul Rouleau J.A., and Grant Huscroft J.A., File No. CA M44316, C59401) 250 A.C.W.S. (3d) 11.

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.

Police

DISCIPLINE

Delay in issuance of suspension without pay and allowances order did not cause significant prejudice

Petitioner disputed issuance of suspension without pay and allowances order (SPAO) against him pending outcome of disciplinary proceedings taken against him by employer. Acting Commissioner of Royal Canadian Mountain Police (RCMP) denied petitioner’s grievance. Acting Commissioner found that petitioner was not victim of undue delay in issuance of SPAO and in processing of grievance. Acting Commissioner found that duration of SPAO was not unreasonable and that it was warranted in particular circumstances of case. Acting Commissioner held that petitioner’s behaviour constituted breach of Code of Conduct of RCMP and that it was so outrageous as to significantly affect performance of his duties under Royal Canadian Mounted Police Act. Petitioner applied for judicial review. Judge concluded that petitioner failed to establish that delay was so as oppressive as to taint proceedings and to cause serious prejudice. Judge was satisfied that Acting Commissioner’s conclusion was reasonable. Petitioner appealed. Appeal dismissed. Delay in matter did not impact fairness of hearing. Petitioner did not suffer significant prejudice as result of delay. Acting Commissioner’s decision was reasonable. Decision was based on interpretation of RCMP suspension policy of which he had significant expertise. Interpretation and conclusion of Acting Commissioner were open to him. Reasons were thorough enough to explain how Acting Commissioner reached conclusion and for judge to judicially review decision. Judge properly applied standard of review.
Camara v. Canada (Feb. 12, 2015, F.C.A., Johanne Gauthier J.A., D.G. Near J.A., and A.F. Scott J.A., File No. A-268-14) Decision at 240 A.C.W.S. (3d) 749 was affirmed.  250 A.C.W.S. (3d) 150.

Competition Law

MERGERS

No more than marginal efficiency gains required for efficiencies defence to apply

Oil and gas operations in northeastern B.C. produce hazardous waste, generally disposed of in secure landfill. Four permits for dedicated landfill operations issued; two held by Tervita, which operates two landfills, one for Peejay site, not yet constructed, and one for Babkirk site. BLS, owner of Babkirk, retained firm to prepare documentation to apply for secure landfill permit. At same time, individual respondents (Vendors) negotiated agreement to purchase shares of BLS. Shortly prior to issuance of Environmental Assessment Certificate for Babkirk secure landfill, Vendors acquired shares of BLS through Complete Environmental. Vendors, intending to operate Babkirk site primarily as bioremediation facility, subsequently sold shares in Complete to Tervita. Commissioner applied to Tribunal pursuant to s. 92 of Competition Tribunal Act (Can.), for order that transaction be dissolved on ground it was likely to prevent competition. Tribunal found that quantified anti-competitive effects of merger exceeded quantified gains in efficiency and ordered Tervita to divest itself of BLS shares. Appeal by Tervita, Complete and BLS to Federal Court of Appeal dismissed but further appeal allowed. There was sufficient evidence upon which Tribunal could find that merger would be likely to substantially prevent competition. In order for Tribunal to make most objective assessment possible in efficiencies analysis, Tribunal should consider all available quantitative and qualitative evidence. Commissioner failed to meet s. 96 of Act burden to quantify quantifiable anti-competitive effects; possible range of deadweight loss resulting from merger was unknown due to lack of price elasticity information. Those quantifiable anti-competitive effects, therefore, should be assigned zero weight. Federal Court erred by allowing for subjective judgment to overtake analysis in setting weight of these effects at undetermined. Also unfair to require merging parties to demonstrate that efficiency gains exceed and offset undetermined amount. Section 96 of Act does not require more than marginal efficiency gains for efficiencies defence to apply. Federal Court of Appeal erred in finding that anti-competitive merger could not be approved under s. 96 of Act if only marginal or insignificant gains in efficiency result from that merger. Weight given to quantifiable effects is zero and there were no proven qualitative effects. Tervita made out efficiencies defence by establishing overhead efficiency gains resulting from BLS obtaining access to Tervita’s administrative and operating functions.
Commissioner of Competition v. CCS Corp. (Jan. 22, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35314) Decision at 226 A.C.W.S. (3d) 719 was reversed.  248 A.C.W.S. (3d) 811.

Charter of Rights

ENFORCEMENT OF RIGHTS

Police failed to ascertain whether second strip search was necessary

Accused charged with importing cocaine into Canada. Accused applied for stay of proceedings or exclusion of evidence based on breach of s. 8 Charter rights. Upon her arrival at airport from Jamaica, officers discovered that accused had approximately 1.2 kilos of cocaine hidden in her bra. Customs officers conducted strip search of accused and shortly thereafter transferred custody of her to police. Accused was transferred to detachment and placed in cell, where female officer conducted further strip search of her. Door of cell remained open to hallway and search was video recorded by security camera located in cell. Officers did not discuss circumstances of case and whether strip search was necessary. No supervisory authorization was sought for strip search. After strip search accused provided statement that was video and audio recorded. Accused testified that she felt uncomfortable in circumstances, but that search had no real impact on her or her recorded statement. Accused argued second strip search by police was unreasonable. Accused argued that even though there was no causal connection between search and statement, statement should have been excluded. Search was not challenged until after jury had watched and listened to accused’s recorded statement. Application allowed, evidence excluded, mistrial ordered. Other male officers did not view any part of search and there was no one else in detachment at time of search. Officers were unfamiliar with, or unaware of, any written policy or protocol regarding strip searches, but knew that they were routinely done in drug importation cases. Police failed to ascertain from customs officers whether strip search had been conducted and whether second search was necessary. Suspicion that drugs may be hidden somewhere else did not validate conducting strip search. There were no reasonable grounds for second search since accused was in custody from time of first strip search and would not have had opportunity to acquire or hide on her person any other contraband. Strip search was unreasonable and violated accused’s s. 8 Charter rights. Given facts of case, especially circumstances and timing of bringing of application, stay was not justified. While accused’s statement was taken shortly after search, it was not causally connected to search. Strip search and accused’s statement were integral part of same transaction, there existed temporal connection, and s. 24(2) Charter analysis was appropriate. Charter-infringing conduct was very serious, as strip search was very significant violation of right to privacy and accused’s right to be protected from unreasonable search. Given that accused had attempted to re-enter Canada with cocaine on her person, impact of breach was less significant. Breach did not impact on accused’s demeanour or attitude when her statement was recorded. If statement was excluded, Crown still had case. There was heightened interest in prosecution of this case. Seriousness of breach overwhelmed other two considerations that favoured admission of statement. Actions of officers in relation to second search, while not intentional, reflected troubling lack of knowledge of law and principles to be applied to strip searches. While public had interest in adjudication of case on its merits, educated public would have demanded better police practices. Breach was so significant that accused’s recorded statement ought to have been excluded. As statement had already been viewed by jury, only recourse was to declare mistrial.
R. v. Foster (Dec. 12, 2014, Ont. S.C.J., Thomas A. Bielby J., File No. Crim J(F) 296/13) 118 W.C.B. (2d) 489.
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