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Employment

PUBLIC SERVICE

Matter was referred back to Veterans Review and Appeal Board for reconsideration of retroactivity of pension in light of breach of duty to inform

Veteran had fought for Canada during Second World War. In 1996, veteran filed application for disability pension for stomach ulcers. Veteran passed away in 2005, and his daughter continued proceedings on his behalf. Minister rendered decision whereby pension application was denied because veteran’s condition did not arise from military service. That decision was confirmed by review panel of Veterans Review and Appeal Board (VRAB) in 2007. However, appeal panel of VRAB held that daughter and surviving spouse were entitled to pension and established effective date of pension retroactively to November 9, 2005, but no additional award was granted. In 2009, reconsideration panel of VRAB established effective date of pension as October 30, 2004, and granted additional award of 24 months, taking into consideration administrative difficulties experienced by daughter. In 2010, VRAB rejected new application for review, finding that that Department of Veterans Affairs of Canada (VAC) did not breach duty to provide counselling service under s. 81(3) of Pension Act (Can.), when processing disability pension application and that disability pension payment date of October 30, 2004 should be confirmed. On application for judicial review, judge concluded that VAC breached duty to inform under s. 81(3) of Act, which caused delay in paying pension. Application for judicial review was allowed and matter was referred back to VRAB for reconsideration of retroactivity of pension in light of breach of duty to inform. VRAB confirmed maximum retroactivity period that set pension’s effective date at October 30, 2004, and maximum additional award equivalent to two years’ pension. VRAB rejected argument that case should be remitted back to Minister for additional award. Surviving spouse and daughter unsuccessfully brought motion seeking judicial review of VRAB’s decision. Federal Court Judge found that VRAB correctly refused to remit matter back to Minister and decision was reasonable. Surviving spouse and daughter appealed. Appeal dismissed. Federal Court Judge did not err with respect to relevant standard of review of reasonableness. Federal Court Judge did not err in finding that VRAB’s decision not to remit matter to Minister was reasonable. Record showed that surviving spouse and daughter had already been granted maximum compensation. Reviewing judge’s refusal to order matter be remitted to Minister was necessarily reasonable because even if had done so, surviving spouse and daughter could not have received additional compensation.
Arial c. Canada (Procureur général) (Sep. 30, 2014, F.C.A., Marc Noël J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-290-13) Decision at 230 A.C.W.S. (3d) 1073 was affirmed.  251 A.C.W.S. (3d) 511.

Employment

WRONGFUL DISMISSAL

Reasonable for employer to request further medical information from worker upon return to work

Appellant worker was employed by respondent employer as operator of grain terminal for approximately 20 years. Worker left work ill and was hospitalized. Worker filed claim with Workplace Safety and Insurance Board (WSIB) claiming that symptoms he experienced were possible result of toxic allergic reaction to grain dust. Worker notified employer that his doctor advised him he could not return to work due to health concerns. WSIB informed worker that evidence did not establish occupational disease. Worker presented two-line note from family doctor to employer that stated that he was capable of returning to his job. Employer told worker he could not return to work until he presented better doctor’s note. Employer placed worker on temporary layoff. Seasonal lay-offs occurred every year. Worker filed complaint of unjust dismissal. Adjudicator determined that employer had constructively dismissed worker and that dismissal was unjust. Employer applied for judicial review. Judge found that it was clear that worker’s claim only related to conversation he had with employer that he could not return to work until he provided better doctor’s note and not to seasonal lay-off notice. Judge found that adjudicator’s decision was unreasonable because it had nothing to do with conversation. Adjudicator’s decision was set aside. Worker appealed. Appeal dismissed. Judge properly selected reasonableness as standard of review. Judge properly found that worker’s complaint related to conversation he had with employer concerning providing better doctor’s note. Adjudicator properly outlined test for constructive dismissal, but there was no basis upon which he could have reasonably concluded that employer constructively dismissed worker. Conversation that occurred between parties did not amount to change in fundamental term of worker’s employment. It was clear that worker continued to have substantial health problems. In circumstances, it was reasonable for employer, who had obligation to ensure safety of its employees, to request further medical information from worker upon his return to work. Two-line doctor’s note worker provided did not contain enough information for employer to satisfactorily conclude that worker could safely return to work.
Donaldson v. Western Grain By-Products Storage Ltd. (Mar. 4, 2015, F.C.A., Johanne Gauthier J.A., David G. Near J.A., and A.F. Scott J.A., File No. A-360-12) Decision at 218 A.C.W.S. (3d) 855 was affirmed.  251 A.C.W.S. (3d) 143.

Customs and Excise

DUTY

R&D payments were, in entirety, in respect of goods in issue

Appellant was in business of selling footwear. Respondent made seven decisions pursuant to s. 60(4) of Customs Act (Can.), concerning value for duty of footwear imported by appellant. Respondent determined that payments made by appellant to vendor, its parent company, for research, development and design expenses (R&D payments) must be included, in their entirety, in price paid or payable for goods in issue and their value for duty for purposes of Act. Appellant appealed. Tribunal dismissed appeal. Tribunal concluded that R&D payments, in entirety, were in respect of goods in issue and must be included in their value for duty purposes. Appellant appealed tribunal’s decision. Appeal dismissed. Standard of review was reasonableness. Appellant was asking Court of Appeal to re-weigh evidence before tribunal, which was beyond scope of court’s role. Tribunal’s decision was reasonable. It was reasonable for tribunal to conclude that R&D payments were, in entirety, in respect of goods in issue. Tribunal’s description of legal test was correct. In determining whether payment was in respect of certain goods, main question was whether there was sufficient link between payment and goods. Tribunal reasonably concluded that link between R&D payments and footwear imported by appellant was sufficient. Tribunal reasonably concluded that research, design and development process was interrelated, whole of which was require to produce goods. Appellant’s arguments as to how R&D costs were not in respect of goods were not accepted. Tribunal did not err in its use of authorities. Decision was transparent, intelligible and justifiable. Conclusion fell within range of possible, acceptable outcomes that were defensible in respect of facts and law.
Skechers USA Canada Inc. v. Canada (President of Border Services Agency) (Mar. 2, 2015, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and David G. Near J.A., File No. A-121-14) 250 A.C.W.S. (3d) 428.

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.

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.

Aboriginal Peoples

CROWN RELATIONSHIP

Judge ought to have refused to entertain judicial review application

Respondent company made request to respondent Minister to consent to assignment of two easements for oil pipelines located, in part, on one of First Nation’s reserves. Before Minister could make decision, First Nation commenced judicial review application seeking order prohibiting Minister from giving his consent to assignment and for declaration that Minister was legally bound to follow its instructions with respect to company’s request. Judge held that Minister did not have absolute duty to refuse to consent to assignments upon being advised that First Nation did not agree that consent should be given. Judge held that Minister had to re-examine whether First Nation’s consent was required and whether it was in First Nation’s and public’s interest to give consent to company. Judge declared that Minster should consider First Nation’s request that consent be withheld unless more favourable terms could be obtained from company. First Nation appealed and company cross-appealed. Appeal dismissed; cross-appealed allowed. Judicial review process was premature and there was no basis for Federal Court or Court of Appeal to interfere with administrative process that required Minister to decide whether he should consent to assignments sought by company. Circumstances First Nation put forward to justify its pre-emptive strike were not exceptional. There was no irreparable harm or prejudice arising from having Minister decide question before him. Judge ought to have refused to entertain judicial review application and should have allowed administrative process to run its course. Application for judicial review was dismissed.
Cold Water Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (Nov. 25, 2014, F.C.A., M. Nadon J.A., Webb J.A., and Boivin J.A., File No. A-399-13) Decision at 235 A.C.W.S. (3d) 1 was affirmed.  247 A.C.W.S. (3d) 737.
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