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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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Aboriginal Peoples

CROWN RELATIONSHIP

Judicial review not appropriate course of action to determine whether treaty rights infringed

Respondent BC Hydro submitted project description, which initiated environmental assessment processes. Project was proposed dam and 1,100-megawatt generating station on Peace River, which would flood Peace River Valley if constructed. Joint review panel of British Columbia and federal governments and Minister of Environment determined that significant adverse environmental effects would likely result from construction of project. Governor in Council (GIC) decided that adverse environmental effects were justified in circumstances. Applicants were British Columbia Treaty 8 First Nations whose members exercised constitutionally protected treaty rights within project and surrounding area. First Nations applied for judicial review of GIC’s decision. Application dismissed. Decision of GIC was afforded considerable deference. Judicial review was not appropriate course of action to determine whether treaty rights had been infringed. Evidentiary record that was developed for an action was appropriate basis for court to determine issue of infringement of First Nations’ treaty rights. Infringement of important and fundamental treaty rights required complete evidentiary record to be fairly and reasonably determined. First Nations failed to establish that they had legitimate expectation that GIC would deal with issue of treaty infringement. Crown did not need to determine infringement of First Nations’ treaty rights but they did consider those rights. From beginning of environmental assessment process to its conclusion steps were built into process to ensure that decision-makers were provided with information they reasonably required to make decisions. BC Hydro consulted with First Nations extensively and in good faith. Duty to consult and accommodate First Nations was met and GIC’s decision was reasonable.
Prophet River First Nation v. Canada (Attorney General) (Aug. 28, 2015, F.C., Michael D. Manson J., File No. T-2292-14) 258 A.C.W.S. (3d) 651.

Employment

PUBLIC SERVICE

Commission’s denial of permission for prosecutor to seek nomination in federal election was upheld on appeal

Applicant’s request for permission and leave of absence to seek nomination in federal election denied by Public Service Commission. Applicant was prosecutor in Regulatory and Economic Prosecutions and Management Branch of Public Prosecution Service of Canada. Applicant’s supervisor claimed no concern if applicant returned to work if not elected but Director of Public Prosecution (DPP) had concerns about impairment or perceived impairment of applicant’s ability to perform duties both before election and upon her return to work. DPP claimed that partisan political activities by prosecutors undermine prosecutorial function. Commission not satisfied that being candidate would not impair or be perceived as impairing applicant’s ability to perform duties in politically impartial manner. Applicant’s appeal dismissed. Charter rights engaged were right to run for office, freedom of expression and freedom of association. Issue was whether Commission’s decision reflected proportionate balancing of Charter rights in light of statutory objectives. Commission’s decision did not amount to blanket prohibition on all federal prosecutors but based on consideration of applicant’s specific duties. DPP clearly expressed view that political involvement not appropriate for federal prosecutors. Implicit in scheme of Public Service Employment Act that right to engage in political activity may have to give way to objective of ensuring employees perform duties in politically impartial manner. PSEA requires commission to recognize and balance employee’s right to engage in political activities and objective of maintaining principle of political impartiality in public service. Although commission did not identify rights at stake as Charter rights, decision and process reflected that commission considered all submissions and impact of refusal which would limit applicant’s rights. Commission understood factual context, recognizing that applicant had authority to exercise significant discretion relative to other public servants. Commission properly viewed exercise of discretion in context of government employees and reasonably found that applicant would have increased visibility as result of seeking candidacy. Commission entitled to attach more weight to submissions of DPP but considered other information. Commission concluded that no measures could address risk to political partiality or perception of political partiality. Commission’s decision reflected proportionate balancing and was reasonable.
Taman v. Canada (Attorney General) (Oct. 13, 2015, F.C., Catherine M. Kane J., File No. T-60-15) 258 A.C.W.S. (3d) 327.

Constitutional Law

CHARTER OF RIGHTS

Use of psychological risk assessment tools violated Aboriginal offender’s rights under s. 7 of Charter

Plaintiff was 53-year-old Aboriginal offender. Plaintiff was adopted by Caucasian family when he was six months old. Plaintiff was serving two life sentences for second degree murder and attempted murder, and was sentenced to 15 months’ imprisonment to be served concurrently for escape from lawful custody conviction. Plaintiff spent 30 years in federal correctional facilities. Plaintiff was eligible for full parole since 1999 but never had parole hearing. Commissioner of Correctional Services Canada used psychological risk assessment tools (“actuarial tests”) during plaintiff’s incarceration. Plaintiff waived his right to each parole hearing alleging he was unlikely to be granted parole because he was assessed as too great risk of reoffending in part due to results of actuarial tests. Actuarial tests were alleged to be unreliable in regard to Aboriginal prisoners and use of such tests resulted in significant adverse impact on plaintiff. Plaintiff asserted use of assessment tools violated his rights under s. 7 of Canadian Charter of Rights and Freedoms. Action allowed. Court intended to issue final order enjoining use of assessment tools in respect of plaintiff and other Aboriginal inmates until defendant conducted study confirming reliability of those tools in respect to adult Aboriginal offenders. In interim, defendant was enjoined from using results of assessment tools in regard to plaintiff. Use of assessment tools violated plaintiff’s rights under s. 7 of Charter without justification under s. 1. Continued use of assessment tools was overbroad of purpose and objective of the legislation and of CSC’s decision making responsibilities. Assessment tools were used without qualification or caution despite long-standing concerns about their reliability.
Ewert v. Canada (Sep. 18, 2015, F.C., Michael L. Phelan J., File No. T-1350-05) 258 A.C.W.S. (3d) 320.

Elections

POLITICAL PARTIES

Conservative Party of Canada was not legal entity that exercised powers by or under act of Parliament

In underlying proceeding applicant challenged decisions of respondent, Conservative Party of Canada, disqualifying him as candidate for nomination to run under Conservative Party banner in Kanata-Carleton riding. Applicant brought motion for order enjoining Conservative Party of Canada from conducting proposed candidate nomination meeting for federal riding of Kanata-Carleton. Motion dismissed. Federal Court’s jurisdiction to grant prerogative relief that applicant sought was limited to decisions made by federal board, commission or other tribunal. Political parties were voluntary associations. Conservative Party of Canada was not legal entity that exercised powers by or under act of Parliament. Decisions applicant sought to challenge were private matters that did not constitute decisions of federal board, commission or other tribunal. Federal Court had no jurisdiction to grant interim relief that was sought and it had no jurisdiction to deal with underlying application for judicial review.
Olumide v. Conservative Party of Canada (Jul. 22, 2015, F.C., R.L. Barnes J., File No. T-970-15) 258 A.C.W.S. (3d) 71.

Contempt of Court

PUNISHMENT

Contemnors fined $50,000 for continuing to use trade-mark

Judge ruled that respondent infringed applicant’s trademark HIGH TIMES, contrary to ss. 19 and 20 of Trademarks Act. Judge determined that respondent directed public attention to its goods, services or business in way that caused or was likely to cause confusion between its goods, services or business and those of applicant, contrary to s. 7(b) of Act. Judge permanently enjoined respondent from selling, distributing or advertising goods or services in association with applicant’s registered trademark or trademark likely to be confused with that of applicant. Respondent continued to use trademark and name HIGH TIMES. Respondent pleaded guilty to five counts of contempt. This was to determine penalty. Acts of contempt were objectively and subjectively serious. Respondent’s behaviour challenged judicial authority of court and public’s confidence in administration of justice. Aggravating factors included seriousness of acts of contempt and unexplained delay in compliance. Mitigating factors included this being first offence, guilty plea and fact that respondent’s business was relatively small and unsophisticated. Respondent had not accepted responsibility or apologized. Applicant was diligent in efforts to rectify contemptuous conduct, which warranted award of solicitor-client costs. Applicant was awarded solicitor-client costs of $62,500, payable jointly and severally by respondent and officer and director. Given history of trademark infringement and primary consideration of general deterrence, it was appropriate to order respondent and officer and director were to pay fine of $50,000 on joint and several basis.
Trans-High Corp. v. Hightimes Smokeshop and Gifts Inc. (Jul. 27, 2015, F.C., Simon Fothergill J., File No. T-1004-13) 258 A.C.W.S. (3d) 57.

Constitutional Law

CHARTER OF RIGHTS

Arbitrator did not err in finding that s. 3 of Charter did not apply to First Nation election

Applicant O was member of respondent First Nation and was nominated to run for Chief in election. However, O was told by election officer that he could not do so because s. 9.3(c) of Customary Election Regulations of the Peerless Trout First Nation stated that any elector who was plaintiff in civil action against First Nation was not eligible to be nominated and O had commenced civil action against First Nation that was ongoing. O appealed and brought action seeking to have s. 9.3(c) of Regulations declared invalid on grounds it was contrary to Canadian Charter of Rights and Freedoms. Master found that s. 9.3(c) of Regulations did not violate Charter. Arbitrator dismissed O’s appeal, finding that elections officer properly applied s. 9.3(c) of Regulations and that s. 9.3(c) of Regulations did not infringe Charter. O brought an application for judicial review. Application dismissed. There was no authority to support O’s argument that there was constitutional guarantee that members of First Nation could run for elected office of First Nation Council. Given clear line of authorities, arbitrator did not err in finding that s. 3 of Charter did not apply to First Nation election and therefore s. 9.3(c) of Regulations was not unconstitutional because it did not conflict with s. 3 of Charter. Arbitrator did not err in finding that eligibility requirement was not abuse of power or contrary to rule of law. It was open to arbitrator to find that s. 9.3(c) eligibility requirement was directed toward ensuring that First Nation Chief and councillors were able to fully and properly carry out duties and responsibilities and demonstrate responsible government. Arbitrator’s interpretation of s. 9.3(c) of Regulations was reasonable.
Orr v. Peerless Trout First Nation (Sep. 8, 2015, F.C., Cecily Y. Strickland J., File No. T-32-15) 257 A.C.W.S. (3d) 751.   

Administrative Law

FREEDOM OF INFORMATION

Dismissal of motion for production upheld on appeal

Applicant, professor of sociology and criminology doing research on Correctional Service Canada Review Panel, submitted request under Access to Information Act for documents related to panel from respondent, Public Safety Canada. Among other things, he sought panel’s work plan, budget, information regarding appointment of members and information regarding members’ refusal to be interviewed by him. Public Safety Canada responded there were no relevant records. Applicant made complaint to Information Commissioner of Canada. Commissioner investigated and confirmed thorough search had been conducted and there were no relevant records. Commissioner suggested applicant submit request for information to Correctional Service Canada. Instead, applicant brought application for judicial review. Applicant then brought motion under R. 317 of Federal Courts Rules for production of all documents related to creation, supervision and responsibility for work of panel. Motion denied as attempt to obtain same information requested in access to information request which respondent had already denied possessing. Applicant brought motion for reconsideration which was denied. Applicant brought appeal which was dismissed. Following cross-examination of respondent’s representative, applicant brought motion for issuance of subpoena duces tecum to compel production of certain notes and respondent’s entire access to information file. Motion denied on basis, among other things, issue had already been decided. Applicant brought motion for leave to appeal. Motion denied. Decisions by prothonotaries not to be disturbed unless they raised question vital to final issue in proceeding or order made clearly wrong in sense that exercise of discretion based upon wrong principle or misapprehension of facts. This court had already decided matters of document production and discovery not vital to final outcome of case. Prothonotary had, however, erred in finding that documents for which production sought same as those sought earlier. While there was some overlap, they were not identical with result res judicata did not apply. Exercising discretion de novo, however, motion should still be denied on basis applicant really seeking contents of tribunal record which had already been produced or should be subject of motion under R. 317 and R. 318. Prothonotary had made no error in deciding applicant had failed to follow R. 91 with respect to direction to attend, that subpoena procedure under R. 41 was not available in context of judicial review or in adopting portion of respondent’s representations, qualifying motion as fishing expedition, as his own.
Yeager v. Canada (Department of Public Safety and Emergency Preparedness) (Aug. 17, 2015, F.C., Denis Gascon J., File No. T-91-09) 257 A.C.W.S. (3d) 502.
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