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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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Higher courts would benefit from practical expertise of provincial superior courts

Applicant fathers brought application alleging that Federal Child Support Guidelines (Can.), contradicted provisions of Divorce Act (Can.), under which they were enacted. Fathers sought to have Federal Court declare that Guidelines were ultra vires DA. Attorney General applied to have application dismissed. Federal Court Judge dismissed application. Judge found that four fathers lacked standing and did not meet test for public interest standing. Judge found that one father’s application was impermissible collateral attack and abuse of process. Judge found that one father had standing but court should decline to exercise jurisdiction to hear application because issues would be more appropriately dealt with in provincial superior court. Father appealed. Appeal dismissed. Judge did not err in law in concluding that provincial superior courts had jurisdiction to determine vires of Guidelines in context of proceedings for which they had jurisdiction under Act and to decline to apply them if found to be ultra vires. Judge erred in principle in applying and describing third factor to be considered in determining public interest standing. Appeal should be determined on issue of whether or not judge erred in declining to exercise jurisdiction and it was assumed fathers could have some standing. Judge’s discretion not to hear matter should be respected. Vires of Guidelines should be determined by court that developed particular expertise to properly assess argument in factual context. It would be more appropriate to adjudicate issues in context of divorce proceedings because it would ensure full participation of spouse seeking support. Higher courts would benefit from practical expertise provincial superior courts had. While declaration of invalidity could not be granted by provincial superior court, fathers could obtain ultimate goal of reduction of child support.
Strickland v. Canada (Attorney General) (Feb. 5, 2014, F.C.A., Blais C.J., Sharlow J.A., and Johanne Gauthier J.A., File No. A-199-13) Decision at 228 A.C.W.S. (3d) 705 was affirmed.  244 A.C.W.S. (3d) 341.

Human Rights Legislation


Once finding of undue hardship made, complaint should be dismissed

Complainant was employee of Canadian International Development Agency (CIDA) and she applied for postings in Afghanistan. Complainant had type 1 diabetes and was dependent on insulin. Complainant had two temporary assignments in Afghanistan but during second posting she had hypoglycemic incident that resulted in posting being curtailed against her wishes and her returning to Canada. Following incident, persons who were being posted to Afghanistan on temporary assignments were required to be assessed medically before being assigned to work there. Health Canada developed Afghanistan guidelines.

Complainant continued to apply for other postings in Afghanistan but she was not offered any other assignment. Complainant filed complaints of discrimination against CIDA and Health Canada. Tribunal found that applicant established prima facie case of discrimination against CIDA and Health Canada on basis of disability. Tribunal found that CIDA had not met procedural duty to accommodate complainant and had not provided bona fide justification for discriminatory practices. Tribunal found it would have caused CIDA undue hardship to accommodate complainant in Afghanistan. Tribunal awarded other monetary and systemic remedies. On application for judicial review, Federal Court Judge found that once finding of undue hardship had been made, complaint should have been dismissed as conduct would not then be discriminatory practice for purposes of Canadian Human Rights Act. Tribunal’s decision was set aside. Human Rights Commission appealed. Appeal dismissed. Based on provisions of Act, only reasonable or correct interpretation of applicable provisions was that once tribunal found that it would have imposed undue hardship on CIDA to accommodate needs of complainant in posting her to Afghanistan, complaint should have been dismissed. There was not separate procedural duty to accommodate under Act that could give rise to remedies if employer established it had satisfied all parts of test for determining whether prima facie discriminatory standard was bona fide occupational requirement. If employer established that prima facie discriminatory standard was bona fide occupational requirement then complaint should be dismissed.

Cruden and Canadian International Development Agency, Re (May. 20, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., File No. A-214-13) Decision at 228 A.C.W.S. (3d) 1092 was affirmed.  244 A.C.W.S. (3d) 172.

Industrial and Intellectual Property


Incorporation of musical work into audiovisual work was reproduction that attracted royalties

Copyright board exercised its mandate under s. 70.2 of Copyright Act (Can.), to settle terms of licences granted to two broadcasters by collective society that administered reproduction rights. Terms of licence reflected board’s view that royalties were payable with respect to ephemeral copies of works made by broadcasters in normal course of their production or broadcasting activities. Ephemeral copies were copies or reproductions that existed only to facilitate technological operation by which audiovisual work was created or broadcast. Broadcasters applied for judicial review. Application granted in part. If technological advances required making of more copies of musical work in order to get audiovisual work that incorporated it to market, those additional copies added value to enterprise and attracted additional royalties. Broadcasters’ argument that copy-dependent technology did not add value to enterprise and as result, there was no additional value to share with artists, was essentially economic argument. Board heard extensive evidence on argument and its conclusion had evidentiary foundation. There was no basis to interfere with board’s conclusion on economic justification. Broadcasters conceded that incorporation of musical work into audiovisual work was reproduction that attracted royalties. Board’s reasoning was grounded in Bishop v. Stevens (1990), 72 D.L.R. (4th) 97, 22 A.C.W.S. (3d) 568 (S.C.C.), where Supreme Court of Canada held that ephemeral recordings of performance of work made solely for purpose of facilitating broadcasting of that performance were, if unauthorized, infringement of copyright holders rights. Bishop v. Stevens continued to remain good law. Entertainment Software Assn. v. Society of Composers, Authors and Music Publishers of Canada (2012), 347 D.L.R. (4th) 193, 216 A.C.W.S. (3d) 218 (S.C.C.) (ESA), restated principle of technological neutrality in copyright law, but provided no guidance as to how court should apply principle when faced with copyright problem in which technological change was material fact. Nothing in ESA authorized board to create category of reproductions or copies which, by their association with broadcasting, would cease to be protected by Act. ESA did not overrule Bishop v. Stevens. Comments in ESA about technological neutrality had not changed law to point where board erred in finding that incidental copies were protected by copyright. However, formula imposed by board was flawed and discounted formula was amended.
Canadian Broadcasting Corp. v. SODRAC 2003 Inc. (Mar. 31, 2014, F.C.A., Marc Noel J.A., J.D. Denis Pelletier J.A., and Johanne Trudel J.A., File No. A-516-12, A-527-12, A-63-13) 241 A.C.W.S. (3d) 434.



Grant of citizenship by descent limited to first generation born abroad to Canadian citizens

Applicants’ paternal grandmother was Canadian citizen, but ceased to be Canadian citizen when she became naturalized citizen of United States. Applicants’ father was born in United States and at time of his birth neither of his parents were Canadian citizens. Applicants were born in United States and at time of their birth neither of their parents were Canadian citizens. Citizenship Act (Can.), was amended to extend citizenship to individuals who lost or were denied citizenship. Grandmother’s Canadian citizenship was restored retroactively to date she lost citizenship and father was deemed to be Canadian citizen from time he was born. Applicants applied for Canadian citizenship. Delegate refused to issue citizenship certificates to applicants because they did not meet statutory requirements for citizenship in s. 3(1)(b) of Act. Delegate found that s. 3(3) of Act limited citizenship by descent to first generation of progeny born abroad to Canadian citizens. Applicants’ application for or judicial review of delegate’s decision was dismissed. Judge found that s. 3(3)(a) of Act was intended to cut-off citizenship by descent after first generation born abroad. Applicants also claimed that s. 3(3)(a) of Act violated s. 15 of Canadian Charter of Rights and Freedoms. Judge found that applicants did not have standing under Charter to challenge unconstitutionality of s. 3(3)(a). Applicants appealed. Appeal dismissed. Standard of review was correctness. Required textual, contextual and purposive analysis was conducted and delegate’s interpretation of Act was correct. Section 3(3)(a) of Act operated to limit grant of citizenship by descent to first generation born outside of Canada to Canadian parent and that limitation applied to applicants.
Kinsel v. Canada (Minister of Citizenship and Immigration) (May. 14, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G. Near J.A., File No. A-35-13) Decision at 224 A.C.W.S. (3d) 264 was affirmed.  240 A.C.W.S. (3d) 295.

Human Rights Legislation


Employer ordered to pay $20,000 to employee for its reckless conduct

Employee worked as conductor and her home terminal was Jasper, Alberta. Employee was on laid off status, but was recalled to report to temporary work assignment in Vancouver, British Columbia to cover employer’s shortage of running trade employees at Vancouver terminal. Employee asked for accommodation with respect to her childcare needs, but employer refused to deal with her requests. Employer informed employee that her seniority rights had been forfeited and her employment terminated because she failed to cover shortage in Vancouver. Employee filed human rights complaint alleging employer discriminated against her on basis of family status. Tribunal found that employer had discriminated against employee within meaning of ss. 7 and 10 of Canadian Human Rights Act, on ground of family status by refusing to accommodate her childcare needs. Employer was ordered to pay $20,000 in special compensation to employee for its reckless conduct. Employer applied for judicial review. Judge found that tribunal’s decision was reasonable and application was dismissed. Employer appealed. Appeal dismissed. Employee was mother of young children at time she was called to Vancouver, children were under her care and supervision and she had legal responsibility to ensure that they would be cared for and supervised while she was away at work. Employer failed to provide any useful information to employee about her work assignment in Vancouver that would have allowed her to assess her childcare needs. Requesting that employee move from Alberta to British Columbia to meet work shortage was work-related situation that interfered in manner that was more than trivial with fulfilment of employee’s childcare obligations. Employee met burden of establishing prima facie case of discrimination. Employer had not established that impugned action was bona fide occupational requirement. Employer was not sensitive to employee’s situation. Various forms of accommodation were provided by employer to other employees that were not offered to employee. Employer’s failure to provide any significant information to employee concerning her assignment to Vancouver that could have assisted her in determining her childcare needs was reckless conduct. Compensation tribunal awarded to employee was reasonable.
Seeley v. Canadian National Railway (May. 2, 2014, F.C.A., J.D. Denis Pelletier J.A., Robert M. Mainville J.A., and A.F. Scott J.A., File No. A-90-13) Decision at 225 A.C.W.S. (3d) 195 was affirmed.  240 A.C.W.S. (3d) 431.



Filing fee was over five weeks’ pay for inmate appellant

Appellant was self-represented inmate who had been in jail for 21 years. Appellant’s pay in jail was $52.50 per two weeks, which was subject to deductions. Appellant could no longer afford to call family as regularly due to new deductions and family did not have car to visit him in jail. Appellant had borrowed money to pay for cardiac care and university education for his children. Appellant brought motion to waive $50 filing fee for filing notice of appeal. Motion granted. Court had jurisdiction to grant relief sought. Two competing principles considered were right of access to court and need to charge fees for services rendered. Only in special circumstances could court depart from requirement to pay fees. Adverse exercise of discretion would foreclose access to courts by whole class of inmate. Appellant had been declared vexatious litigant but he had sought leave to commence proceedings. Appellant remained entitled to access to courts. Filing fee was over five weeks’ net pay for appellant before he tended to other significant expenses. Court exercised its discretion in favour of granting fee waiver.
Fabrikant v. Canada (Apr. 2, 2014, F.C.A., David Stratas J.A., File No. A-338-13) 239 A.C.W.S. (3d) 839.

Administrative Law


Board should have held hearing to resolve conflict

Applicant, bus driver, suspended for failing to respect minimum rest periods. Union grieved but subsequently settled. Applicant terminated for continued failure to respect minimum rest periods and not correctly recording work hours. Union filed termination grievance but refused to proceed to arbitration. Union by-laws entitle members to refuse to take grievance to arbitration based on recommendation from union’s executive board. Applicant argued he was not informed in timely manner of board meeting during which termination grievance discussed nor was he given opportunity to present case before members. Members accepted recommendation that termination grievance not be taken to arbitration. Applicant complained to Canada Industrial Relations Board, alleging union breached duty of representation. Board declined to hold hearing but appointed industrial relations officer to investigate. Board concluded that applicant’s refusal to participate in meetings precluded board from finding union acted in arbitrary, discriminatory or bad faith manner. Board dismissed application for reconsideration, finding it was entitled to rule on matter without hearing and was not obliged to consider recording of members’ meeting since applicant refused to identify source. Applications for judicial review allowed. Employee generally does not have right to take grievance to arbitration without union’s consent so union cannot act in arbitrary, discriminatory or bad faith manner towards employee exercising collective agreement rights. Board failed to consider whether union conducted proper investigation and gathered sufficient information. Employee’s failure to participate was relevant factor but could not, itself, preclude board from finding that union breached duty of fair and equitable representation, particularly in context of termination grievance. Duty remained on union to fulfil duty of representation, regardless of employee’s conduct. Board required to examine union’s conduct to determine whether investigation and decision were fair and equitable. Failure to do so resulted in unreasonable initial and reconsideration decisions. Board breached duty of procedural fairness by refusing to consider recording of union members’ meeting submitted by applicant and by failing to hold hearing. Recording was clearly relevant to whether applicant attended meeting; union did not object to production. Board acknowledged it had contradictory evidence regarding applicant’s attendance and should have held hearing to resolve conflict.
Cadieux and ATU, Local 1415, Re (Mar. 10, 2014, F.C.A., Johanne Gauthier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-447-12, A-118-13) 239 A.C.W.S. (3d) 1011.
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