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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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Unreasonable for tribunal to find applicant’s complaints raised essentially same issues

Applicant was black African Canadian who worked at Immigration and Refugee Board. In 2004, applicant filed complaint with Canadian Human Rights Commission. Core of complaint related to incident that occurred in April 2003, during which racist comments were allegedly made. Complaint also included allegations of systemic discrimination, poisoned work environment and harassment. In 2007, applicant filed two complaints before Public Service Staffing Tribunal alleging that board’s decision to use non-advertised appointment process to staff new tribunal officers discriminated against him on basis of race. Applicant alleged that decision to use non-advertised process was tainted by systemic discrimination and constituted abuse of authority. Tribunal dismissed applicant’s complaints on grounds that he had not established prima facie case of discrimination. Commission forwarded applicant’s human rights complaint to tribunal for inquiry. Board brought motion to dismiss complaint. Tribunal found that subject matter of complaint had been previously adjudicated by tribunal, and that adjudicating complaint would amount to abuse of process. Applicant applied for judicial review. Application granted. Tribunal’s decision did not fall within acceptable outcomes. It was unreasonable for tribunal to conclude that tribunal had decided essentially same issues as those raised in human rights complaint. Having regard to both proceedings, issues raised in complaints could not be found to be essentially same. Fact that in both complaints applicant based allegations on systemic discrimination was insufficient to conclude that tribunal had already dealt with core of applicant’s allegations in human rights complaint. Allegations of systemic discrimination at board for period 2003-2004 were not central to issues raised in tribunal complaints related to choice of non-advertised appointment process in 2007. It was unreasonable for tribunal to find that applicant’s complaints before tribunal and tribunal raised essentially same issues. If tribunal’s finding that pre-conditions for applying doctrines of issue estoppel and abuse of process were met then it erred by not asking whether it would be fair to apply doctrines in specific circumstances of case and prevent applicant from having human rights complaint investigated.
Murray v. Immigration and Refugee Board (Feb. 11, 2014, F.C., Marie-Josee Bedard J., File No. T-229-13) 238 A.C.W.S. (3d) 709.



Plaintiff not entitled to arrest sister ship once it exercised right to arrest offending ship

Vessel hit marine terminal trestle owned by plaintiff. Berth was rendered unusable pending repairs causing loss to plaintiff estimated to be in excess of $60 million. Plaintiff brought action and obtained warrant for arrest of vessel. Parties negotiated release of vessel. Original letter of understanding (LOU) was for security of $26 million against plaintiff’s claim. Plaintiff asserted there was common mistake that amount of available security was capped at value of vessel and there was mistake that right to arrest sister ships was weak or they were of little or no value. Plaintiff asserted it was subject to economic duress in agreeing to accept LOU in order to minimize disruption to business and mitigate financial losses. Plaintiff sought determination of whether there was binding agreement under which plaintiff agreed to waive right to arrest sister ships of defendant ship. Plaintiff sought determination of whether plaintiff could arrest offending vessel and sister ship. Motion dismissed. There was binding agreement to which plaintiff waived right to arrest sister ships. Plaintiff could not arrest offending ship and sister ship. In bringing motion with respect to multiple arrests, plaintiffs themselves implicitly acknowledged that issue was not clear cut since they were seeking determination of that question by court. There was no mistake and there was no basis to set aside agreement on ground of mistake. Plaintiff’s argument about economic duress was ill-founded. Defendant was entitled to take position that vessel would not be moved until security was posted and usual consequence of arrest was that ship would not be moved in absence of court order or consent. There was no coercion of will but there was bargaining. Plaintiff was not entitled to arrest sister ship to vessel once it exercised right to arrest offending ship. Section 43(8), of Federal Courts Act (Can.), did not give right to multiple arrests. Inherent ambiguity in “any” or “de tout” in s. 43(8) of Act was resolved by reference to use of singular “ship” in English version and “navire” in French version. There was no evidence that Parliament intended to provide right to multiple arrests in domestic domain when Convention made it clear that only one ship could be arrested.
Westshore Terminals Limited Partnership v. Leo Ocean S.A. (Feb. 7, 2014, F.C., E. Heneghan J., File No. T-2259-12) 238 A.C.W.S. (3d) 281.

Administrative Law


Minimal duty of procedural fairness required applicant to know case to meet

Applicant was offered position of employment with Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) that was conditional on her obtaining secret security clearance before commencing position and top secret security clearance after commencing employment. Applicant obtained secret security clearance and began employment. FINTRAC refused to issue top secret security clearance to applicant and revoked her secret security clearance, her reliability status and her appointment to position with FINTRAC. Applicant was not given notice of concerns leading to denial of security status and was not provided opportunity to address concerns. Three letters were sent to applicant advising her of redress mechanisms. Applicant was provided with letters from Director of FINTRAC and redacted report from Canadian Security Intelligence Service. Applicant sought judicial review. Application allowed. Decisions to deny top secret status and to revoke secret and reliability status were quashed and sent back to director for redetermination. Decisions denying and revoking security status were administrative decisions. Applicant was owed minimal duty of procedural fairness. Director did not meet duty of fairness. Minimal duty of procedural fairness required applicant to know case to meet and to be given opportunity to respond before final decision was made. Applicant should have known nature of security concerns, but she was not provided with any opportunity to respond. Decision to revoke applicant’s appointment as employee of FINTRAC was governed by contract law and no duty of procedural fairness applied to such decision.
Koulatchenko v. Financial Transactions and Reports Analysis Centre of Canada (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-2252-12) 238 A.C.W.S. (3d) 28



Allegations against Federal Court Registry could not form basis for cause of action

On Sept. 20, 2012, plaintiff initiated an application for judicial review of Canadian Human Rights Commission’s decision not to hear his complaint. Plaintiff attempted to file evidence with unsworn affidavits. As Mennonite, he refused to swear his affidavit on Bible that was provided by court’s registry in Winnipeg because it was not “undefiled” Bible. Plaintiff was ordered to either obtain access to “undefiled” Bible and swear on it, or to make solemn affirmation to affirm his affidavit. On April 30, 2013, plaintiff’s action was dismissed for delay. Plaintiff said he did not receive copy of notice of status review. On May 8, 2013, court issued directions directing plaintiff to either bring motion to set aside April 30, 2013 order or appeal order to Federal Court of Appeal. Plaintiff did neither and application for judicial review was dismissed. On May 16, 2013, plaintiff filed statement of claim commencing action against Crown seeking order declaring Federal Court Registry in Winnipeg in contempt of court, order directing court to hear his application, and interim order providing means of affirming or swearing his affidavit evidence that did not offend his conscience. Defendant filed motion to strike out plaintiff’s statement of claim. Prothonotary struck out plaintiff’s statement of claim without leave to amend. Plaintiff appealed. Appeal dismissed. Prothonotary did not err by finding that statement of claim did not disclose reasonable cause of action. Allegations against Federal Court Registry could not form basis for cause of action. Rule 386 of Federal Court Rules (Can.), could not be used to transfer matter to another jurisdiction. Claims were identical to those made in application that was dismissed for delay. Plaintiff’s attempt to re-litigate same issues was abuse of process.
Klippenstein v. R. (Feb. 25, 2014, F.C., Richard Boivin J., File No. T-874-13) 238 A.C.W.S. (3d) 90.

Aboriginal Peoples


Power to remove by reason of petition was based on enumerated grounds

Election Appeal Committee (“EAC”) of respondent First Nation decided to remove applicant from her position as chief pursuant to their election regulations. Problems arose following applicant’s election as chief on April 12, 2012. Applicant attempted to control assignment of temporary jobs and there were concerns that she was awarding jobs to supporters and family members rather than awarding them on competitive basis. Applicant then sought to appoint new EAC that was more favourable to her positions. EAC advised applicant that such move was contrary to regulations. It obtained sufficient signatures on petition from members of First Nation to convene hearing and have applicant removed as chief. Despite applicant’s refusal to recognize EAC’s authority to remove her from position of chief and her efforts to occupy Band Office, new chief was acclaimed following nomination process in which applicant was not nominated as candidate for position. Applicant sought judicial review to overturn actions of EAC. Application dismissed. EAC’s interpretation and application of election regulations must be upheld. Power to remove by reason of petition was based on enumerated grounds, determination of validity of ground, and if valid, EAC could remove chief or councillor and by-election process was initiated. Process for determining validity was matter of discretion. EAC did not breach duty of procedural fairness. Applicant chose to ignore petition and opportunities to speak to EAC. Applicant availed herself of such procedural rights as she desired.
Bighetty v. Barren Lands First Nation (Feb. 21, 2014, F.C., Michael L. Phelan J., File No. T-770-13) 238 A.C.W.S. (3d) 1.



Board erred in credibility findings

Applicant was citizen of Pakistan who claimed refugee protection on basis she refused to go through with arranged marriage and moved to United States to escape harassment, but continued to be harassed by fiance’s relatives there. Board found determinative issue was credibility and was not convinced fiancé actually existed. Application for judicial review of decision dismissing refugee claim. Application granted. By insisting applicant produce documentary evidence to support testimony in absence of any finding her evidence was contradictory, inconsistent or implausible, board breached principle claimants’ evidence was presumed to be true unless there was valid reason to doubt it. Board erred in rejecting affidavits submitted by applicant merely because they came from her family and did not name her fiance, even though they fully supported applicant’s testimony. Thus, board erred in credibility findings.
Durrani v. Canada (Minister of Citizenship and Immigration) (Feb. 21, 2014, F.C., Russel W. Zinn J., File No. IMM-1263-13) 237 A.C.W.S. (3d) 1002.

Customs and Excise


Respondent not entitled to reassess applicant under second same condition ruling

Applicant imported futon covers from China, which came with three closed sides and zipper. In Canada, applicant inserted mattress into cover, closed zipper and punched plastic jiffies through (tufting) and then exported packaged futon mattresses and frames to United States. Applicant paid customs duty on cover and requested same condition ruling. Respondent found futon covers met “same condition status” under s. 303(6) North American Free Trade Agreement as re-packaging did not materially alter goods. As such, respondent found s. 113 of Customs Tariff (Can.), applied and applicant was entitled to full duty relief. Respondent partially paid drawbacks to applicant, but then initiated audit and found tufting did not qualify for same condition treatment because it changed goods from futon cover to completed mattress. In impugned decisions, respondent demanded return of drawback payments. Application for judicial review of decisions demanding return of drawback payments. Application granted. Section 114 of Tariff only applied to payments mistakenly made, whereas applicant was eligible at time of payment. Respondent entitled to review decision under s. 90. However, it was principle of statutory interpretation that, absent clear wording granting respondent power to retroactively vary certificate granting relief that was validly issued, respondent was not entitled to reassess applicant under second same condition ruling. Indeed, Tariff explicitly provided possibility of retroactive orders in other places. First ruling was not product of misrepresentation or error, rather respondent simply decided on different interpretation. Thus, decisions were unreasonable and incorrect.
Dorel Industries Inc. v. Canada (Border Services Agency) (Feb. 24, 2014, F.C., Yves de Montigny J., File No. T-1024-12) 237 A.C.W.S. (3d) 939.
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