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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.



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


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.



Absence of formal order should not be impediment to right to have findings reviewed

Court had to determine if it had jurisdiction to hear appeal from Further Reasons in light of fact that no formal order was rendered by judge. In 2007, Canadian Security Intelligence Service (CSIS) applied to Federal Court to obtain warrant to assist in investigation of threat-related activities CSIS believed individuals would engage in while travelling outside of Canada. Justice dismissed warrant application on basis that Federal Court did not have jurisdiction to authorize CSIS employees to conduct intrusive investigative activities outside of Canada in circumstances where activities authorized by warrant were likely to constitute violation of foreign law. In 2009, CSIS asked Federal Court to revisit and distinguish justice’s 2007 decision. Another judge was persuaded to issue warrant authorizing CSIS to intercept foreign telecommunications and conduct searches from within Canada. Judge reached this conclusion based upon legal argument different from that before first justice and upon description of facts concerning methods of interception and seizure of information different from that put before first justice. Another judge issued order requiring counsel for both Communications Security Establishment Canada and CSIS to appear before him. Judge was of view that information that had been before justice in 2007 application was not presented to Federal Court in 2009 application or in any subsequent application for Domestic Interception of Foreign Telecommunications and Search (DIFTS) warrant. Judge concluded that CSIS breached its duty of candour by failing to disclose to Federal Court in DIFTS warrant applications that it intended to make requests to foreign agencies to intercept telecommunications of Canadians abroad and that CSIS had no lawful authority under s. 12 of Canadian Security Intelligence Service Act to make such requests and s. 21 of Act did not allow court to authorize CSIS to request that foreign agencies intercept communications of Canadians travelling abroad. Judge made going forward directions of disclosure to courts. No order was issued by judge and he denied request by Attorney General that order issue reflecting judge’s views. Court determined it had jurisdiction to hear appeal. Proceeding before judge had character of generalized inquiry as opposed to continuation of warrant application. Given this and significance of judge’s finding that CSIS had repeatedly failed in its duty of candour, absence of formal order should not be impediment to appellant’s right to have judge’s findings of fact and law reviewed. Findings were declaratory in nature. They were of such importance that they could not be immunized from review.
X, Re (Jul. 31, 2014, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and Robert M. Mainville J.A., File No. A-145-14) Decision at 111 W.C.B. (2d) 847 was affirmed. 117 W.C.B. (2d) 364.


Taxpayer correct in considering he realized capital gain

Taxpayer received payment for surrender of options pursuant to share appreciation right (“SAR”). Taxpayer reported payment as capital gain. Minister re-assessed on basis payment either income from employment or employee benefit, shareholder benefit, or income from venture in nature of trade. Taxpayer appealed. Appeal allowed. Section 7 of Income Tax Act (Can.), meant to provide complete code for taxing of benefits arising under or because of stock option agreement. Section 7(3) meant to exclude benefits arising from non-arm’s length exercise and disposition of options. Surrender payment not properly characterized as “salary, wages and other remuneration”. SAR not separate property from options. Taxpayer did not treat options in same way as trader would. Nothing in record to suggest that taxpayer acquired options with intent of disposing of them or underlying shares for cash. Taxpayer held options until shortly before they expired. Payment not shareholder benefit. Taxpayer gave up something of equal value. Surrender payment reflected monetary value of options. Taxpayer correct in considering that he realized capital gain corresponding to amount of Surrender payment received as proceeds of disposition for his options.
Rogers Estate v. R. (Nov. 25, 2014, T.C.C. [General Procedure], Robert J. Hogan J., File No. 2012-1845(IT)G) 246 A.C.W.S. (3d) 724.

Aboriginal Peoples


Nation’s power with respect to election did not originate from federal act or prerogative

Appellant Nation, not-for-profit corporation, held election to elect board of directors, including Grand Chief and Deputy Grand Chief. Individual appellants were elected Grand Chief, Deputy Grand Chief and directors. Respondent was not elected and he applied for judicial review in Federal Court. Appellants brought motion to strike out application on basis that Federal Court did not have jurisdiction. Federal Court judge dismissed motion on ground that Nation, in holding election, acted as federal board, commission or other tribunal and it had jurisdiction to entertain judicial review application. Appellants appealed. Appeal allowed. Federal Court erred in law in articulation and application of test applied to answer jurisdictional issue. Proper questions to be answered were what jurisdiction or power was being exercised and what was source of jurisdiction or power. Nation was conducting election of board of directors. Source of Nation’s power was bylaw of Nation. Nation’s powers in respect of election did not originate from federal Act or prerogative. In conducting election, Nation was not exercising powers conferred by or under Act of Parliament or by or under order made pursuant to Crown prerogative and it was not acting as federal board. Federal Court lacked jurisdiction to conduct application for judicial review. Application for judicial review was dismissed.
Pokue v. Innu Nation (Nov. 21, 2014, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and A.F. Scott J.A., File No. A-202-14) Decision at 239 A.C.W.S. (3d) 272 was reversed.  246 A.C.W.S. (3d) 493.
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