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Administrative Law

JUDICIAL REVIEW

Applicants had no right to participate in medical marijuana licensing process

Respondent company applied for license to produce medical marijuana at certain property owned by respondent numbered company. Respondent federal health authority granted preliminary approval, subject to inspection to ensure production facility met all applicable regulatory standards. Meanwhile, municipality in which property located passed bylaw prohibiting production of medical marijuana on all properties within its jurisdiction. Respondent, therefore, applied to municipality to rezone property to permit construction and operation of licensed medical marijuana production facility on property. Municipality gave notice of rezoning application to owners and/or occupiers of adjacent properties, including applicants. Applicants wrote to municipality voicing strong opposition. Municipality’s planning department prepared report acknowledging concerns but referencing existing regulatory requirements meant to address such health, safety and security concerns, and recommended application receive first and second reading and be referred to public hearing. Following public hearing, at which applicants given opportunity to voice concerns, municipality decided to proceed with rezoning subject to restrictive covenants meant to ensure compliance with regulatory requirements and environmental remediation of site. Applicants wrote to federal health authority to express concerns and request standing to be heard in licensing application. After receiving no response to repeated requests, applicants applied for declaration they were, as matter of natural justice and procedural fairness, entitled to be heard and for order of mandamus compelling authority to allow them to participate in licensing process. Application dismissed. Applicants had no statutory or common law right to participate in medical marijuana licensing process. While Marihuana for Medical Purposes Regulations required notice of applications to local authorities, they did not require notice to owners or occupiers of adjacent properties. While regulations required authority to refuse any license that would create risk to public health, safety or security, they contemplated local authorities, not third parties such as applicants, would raise such concerns. Applicants concerns were, essentially, related to land use or planning issues, and what municipality had or had not been entitled to do in rezoning process. Their only remedy was to participate in that, not marijuana production licensing process.
P & S Holdings Ltd. v. Canada (Dec. 1, 2015, F.C., Anne L. Mactavish J., File No. T-2184-14) 261 A.C.W.S. (3d) 252.


Administrative Law

FREEDOM OF INFORMATION

Interests and administration of justice better served if applicant’s personal health information kept confidential

In 1998, applicant sought judicial review of administrative decision in respect of his entitlement to certain employment related disability benefits. In 2000, judicial review was dismissed. In 2002, applicant noticed that reasons for decision were posted on Federal Court website. Reasons included personal health information about applicant that he wanted to keep private. His request that Internet version of decision be amended to exclude his personal health information was granted. In 2004, applicant was appointed Ombudsman at the Internet Corporation for Assigned Names and Numbers (ICANN), which administered domain names for the Internet. In 2004, K lodged complaint with ICANN respecting Universal Domain Name Resolution Policy adjudication. Applicant determined that he did not have jurisdiction to hear complaint as K was not person affected by decision. In February 2011, K found information on the Internet concerning applicant’s 1998 judicial review application. He posted link to Federal Court docket and reasons in two separate tweets on his Twitter account. K also posted tweet which contained personal health information about applicant. After protest by applicant, tweet was taken down. At that time applicant realized that, despite direction from court, his personal health information had not been removed from Internet versions of decision. In May 2012, applicant filed a motion requesting confidentiality order over underlying file in matter, which was granted. K brought motion to set aside confidentiality order. Motion granted in part. Confidentiality order was unnecessarily broad. In order to ensure that court proceedings remained presumptively open and accessible to public and media, reasons for decision shall be made public and material related applicant’s file shall no longer be kept confidential. However, interests and administration of justice were better served if applicant’s personal health information was kept confidential. Allowing applicant’s health information to be publicly available would cause objectively discernible harm to his privacy and professional reputational interests. Redaction of reference to applicant’s health information did not alter decision in any way.
Fowlie v. R. (Apr. 24, 2015, F.C., Donald J. Rennie J., File No. T-1971-98) 260 A.C.W.S. (3d)


Aboriginal Peoples

CROWN RELATIONSHIP

Department of Fisheries and Oceans met duty to consult

Authorization was issued pursuant to ss. 32(2)(c) and 35(2)(b) of Fisheries Act and permitted impacts to fish and fish habitat arising from construction of hydro-electric generating station proposed by NE. Applicant members of First Nation community council brought application for judicial review to challenge decision of Minister of Department of Fisheries and Oceans (DFO) to issue authorization to NE. Application dismissed. Duty to consult was met and minister’s decision to issue authorization was reasonable. Process set out in Regulatory Phase Protocol was adequate to meet Canada’s duty to consult, was reasonable and was followed by DFO. While DFO’s response may have been less than perfect, perfection was not required so long as reasonable efforts have been made to consult and accommodate and if result was within range of possible, acceptable outcomes which were defensible in respect of facts and law, there would be no basis to intervene. While applicants were not satisfied with many of Canada’s responses, Minister’s decision to issue authorization was ultimately reasonable.
Nunatukavut Community Council Inc. v. Canada (Attorney General) (Aug. 18, 2015, F.C., Cecily Y. Strickland J., File No. T-1339-13) 260 A.C.W.S. (3d) 651.


Official Languages

GENERAL

Canada Revenue Agency did not violate employee’s right to work in language of choice

Bilingual francophone employee of Canada Revenue Agency (CRA) dealt with call from anglophone. He sent note in French to other bilingual francophone employee. Superiors required him to re-write note in English in accordance with CRA policy requiring use of taxpayer’s preferred language. Employee brought complaint before Official Languages Commissioner. Commissioner found CRA policy reasonable. Employee sought order stating that CRA violated his right to work in language of choice and requiring CRA to review policy to respect rights of its employees. Application dismissed. Since impossible to reconcile service language rights under Part IV and workplace language rights under Part V, Part IV of Official Languages Act took precedence. CRA took all reasonable measures to create and maintain work environment conducive to the effective use of both official languages by its call agents. All other parts of CRA computer systems accessible in both official languages for call agents and only “notepad” or logs to be written by call agents in language of taxpayer. Transfer of calls proposed by employee would entail delays for anglophone callers and thus unequal service.
Tailleur c. Canada (Procureur général) (Oct. 30, 2015, F.C., Denis Gascon J., File No. T-1444-13) 260 A.C.W.S. (3d) 613.

Constitutional Law

CHARTER OF RIGHTS

Charter does not provide positive right to refugee protection

Foreign nationals were citizens of Afghanistan. Officer found principal foreign national was senior official in Afghan government from 1995 to 1997, which overlapped with rule of Taliban, regime designated by minister pursuant to s. 35(1)(b) of Immigration and Refugee Protection Act. Given this determination, officer found foreign national and his family inadmissible by operation of s. 42 of act. Foreign national applied for judicial review. Application dismissed. There was no merit in foreign national’s contention that he was forced out of government employment by Taliban in 1996. There was ample evidence from which officer could conclude that principal foreign national was in service of government until August 1997 and this finding of fact was reasonable. Finding that individual is or was senior member of public service of government described in s. 35(1)(b) is sufficient for finding of inadmissibility. Officer was not required to consider whether foreign national was complicit in Taliban regime. Officer was only required to consider whether foreign national was senior official of that regime within meaning of s. 16 of Immigration and Refugee Protection Regulations. Officer adequately assessed whether foreign national’s service satisfied meaning of prescribed senior official. No procedural fairness arose from failure to disclose poison pen e-mail alleging that foreign national assisted Taliban as there was no indication officer relied on this e-mail in decision. Section 7 of Canadian Charter of Rights and Freedoms was not engaged in present case as Charter does not provide positive right to refugee protection. Unavailability of refugee protection to person facing removal to risk of harm will not violate s. 7 where other protections are available. Even if s. 7 were engaged by finding of inadmissibility, foreign nationals could seek ministerial relief from this finding pursuant to s. 42.1(1) of act.
Tareen v. Canada (Minister of Citizenship and Immigration) (Nov. 6, 2015, F.C., Robin Camp J., File No. IMM-309-15) 260 A.C.W.S. (3d) 563.

Industrial and Intellectual Property

TRADEMARKS

Word “Fusion” was fairly common and suggestive dictionary word

D Ltd. was flooring company that registered trademarks FUSION FORCE and FUSION PATCH in association with adhesives for flooring. D Ltd. also claimed use of several common law trademarks containing word “Fusion” in association with adhesives and grout for flooring. C Ltd. specialized in tile and stone installation. Less than one month after D Ltd. registered its trademarks, C Ltd. registered four FUSION PRO trademarks, three of which had design. C Ltd.’s trademarks were registered in association with grout for flooring. D Ltd. brought application for order expunging C Ltd.’s trademarks from register on basis of likelihood of confusion. Application dismissed. None of C Ltd.’s trademarks were likely to be confusing with D Ltd.’s registered or common law trademarks. D Ltd.’s trademarks did not have inherent distinctiveness. Word “Fusion” was fairly common and suggestive dictionary word. Other entities used word “Fusion” in flooring business in Canada. Evidence of acquired distinctiveness was at best very thin. Use of registered trademarks by two affiliates could not be considered under s. 50(1) of Trademarks Act due to lack of evidence of licensing arrangements or D Ltd.’s control over character or quality of goods using trademarks. Common control between companies through parent company was insufficient to demonstrate control. Such uncontrolled use of “Fusion” trademarks by D Ltd.’s affiliates arguably diminished trademarks’ alleged distinctiveness. C Ltd.’s trademarks were inherently stronger than D Ltd.’s since grout had no adhesive or “joining” properties suggested by word “Fusion”. C Ltd. also had strong sales and engaged in advertising. Parties’ wares were not essentially and primarily same. D Ltd. had not used its trademarks in association with grout. Parties did not primarily target same types of customers and did not operate at same trade level.
Distribution Prosol PS Ltd. v. Custom Building Products Ltd. (Oct. 15, 2015, F.C., Denis Gascon J., File No. T-874-14) 260 A.C.W.S. (3d) 349.

Civil Procedure

CLASS ACTIONS

Action for breach of fiduciary duties and treaty obligations was not certified

Between 1871 and 1921 Canada negotiated 11 treaties with various First Nations. Treaties provided Canada with large tracts of land in exchange for promises made to First Nations. Canada agreed to pay annual annuity to each member of Treaty Bands. In 1875 amount of annuity payments in first two treaties was increased from $3 per person to $5 per person. Plaintiffs alleged that Canada had not adjusted amount of annuity payments in any of treaties since that time and, as result, annuity payments had been reduced in value to point that they no longer contributed to welfare of individual recipients. Plaintiffs claimed that provisions in treaties that provided for annuity payments entitled recipients to amount that was to be annually adjusted to reflect inflation and changes in purchasing power in order to maintain value that was equal to its buying power at time treaty was made. Plaintiffs claimed Canada was in breach of obligations under treaties and its fiduciary duties and sought damages and compensation in amount equal to present value of losses sustained by individual beneficiaries as result of Canada’s failure to adjust annuity payments over time. Plaintiffs brought motion to certify action as class proceeding. Motion dismissed. Plaintiffs pleaded two causes of action, breach of treaty obligations and breach of fiduciary duty. It was not plain and obvious that plaintiffs had no standing such that claim could not succeed as class action. It was not plain and obvious that pleadings did not disclose reasonable cause of action for breach of treaty if it was intention of parties at time treaties were signed that annuity would provide certain level of comfort to Indians and adjustment clause was not negotiated because parties did not foresee that purchasing power of annuity might be significantly eroded. It was not plain and obvious that pleadings did not disclose reasonable cause of action for breach of fiduciary duty to beneficiaries of annuity payments. Pleadings disclosed reasonable cause of action. There was identifiable class of two or more persons. However, plaintiffs failed to establish that there were common issues or facts that related to all individual members of proposed class, given differences in treaties. Treaty interpretation was fact driven and must be done on treaty-by-treaty basis. Representative action might be more appropriate procedure. Neither plaintiff was appropriate representative.
Horse Lake First Nation v. R. (Oct. 15, 2015, F.C., Russel W. Zinn J., File No. T-1784-12) 260 A.C.W.S. (3d) 221.
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