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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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Appeal

PLEADINGS

Request for particulars was fishing expedition

Plaintiff sued defendants for infringement of certain industrial designs related to floor heating grates. Defendants sought particulars with respect to three categories: store outlets and locations where plaintiff’s products were sold; scope and nature of its products; and timeline of sale of its products. Defendants submitted particulars were relevant to its defences of whether plaintiff was proprietor for purposes of Industrial Design Act (Can.), and whether it had registered its designs in timely fashion. Motion judge denied request for particulars on basis that defendants had embarked upon impermissible fishing expedition in respect of matters that were not relevant to plaintiff’s claim, and/or were within defendants’ own knowledge. Defendants appealed. Appeal dismissed. Purpose of particulars was to facilitate ability to plead. Defendants’ request for particulars related to matters relevant to propriety of information sought on discovery rather than information they required in order to plead. No palpable and overriding error was made in concluding defendants were engaged upon fishing expedition. Finding that some particulars sought were within knowledge of defendant HD was fact-based finding that did not give rise to any error.
Imperial Manufacturing Group Inc. v. Decor Grates Inc. (Apr. 20, 2015, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., File No. A-415-13) 253 A.C.W.S. (3d) 799.

Labour Relations

ARBITRATION

Adjudicator had no legal option but to decline jurisdiction

Respondent hired applicant in 2006 under program for persons with disabilities. Applicant’s employment was terminated in 2010. Applicant filed complaint alleging unjust dismissal under Canada Labour Code and he filed complaint alleging discrimination on basis of disability under Canadian Human Rights Act. Adjudicator was appointed under Code to hear unjust dismissal complaint, but respondent challenged adjudicator’s jurisdiction. Parties reached agreement that stayed unjust dismissal complaint. Applicant agreed that adjudicator did not have jurisdiction to hear unjust dismissal complaint unless commission referred complaint back to him. Commission dismissed human rights complaint. Applicant then sought to have unjust dismissal complaint under Code determined by adjudicator. Adjudicator found he lacked jurisdiction to consider complaint and complaint was dismissed. Applicant applied for judicial review. Application was dismissed. Applicant appealed. Appeal dismissed. Adjudicator did not err in applying agreement between parties to decline jurisdiction. Adjudicator was correct to find that question of jurisdiction under s. 242(3.1)(b) of Code prevented him from hearing case and determining procedure to be followed pursuant to s. 242(2)(b). Adjudicator had no legal option but to decline jurisdiction. Judge rendered thorough and well-reasoned decision. There were no breaches of natural justice or procedural fairness. There was no basis to justify setting aside adjudicator’s decision.
Joshi v. Canadian Imperial Bank of Commerce (Apr. 23, 2015, F.C.A., M. Nadon J.A., Eleanor R. Dawson J.A., and Richard Boivin J.A., File No. A-363-14) Decision at 242 A.C.W.S. (3d) 623 was affirmed.  252 A.C.W.S. (3d) 817.

Aboriginal Peoples

GENERAL

Trial judge did not err in concluding parties bound by global financing agreement

Minister of Indian and Northern Affairs financed all of defined benefit pension plans for employees of Huron-Wendat Nation Council between 1985-2008. Minister capped contributions to defined benefit pension plans as of 2008, and made changes to other retirement savings plans. Council unsuccessfully brought action in damages to recover loss of earnings between 2008-2013. Council appealed. Appeal dismissed. Trial judge did not err in its interpretation of decision of Treasury Board and band employee social benefits policy. Trial judge did not err when it concluded that parties were bound by global financing agreement and that it was not contrary to spirit of Treasury Board decision and policy. No commitment in funding actual cost of defined benefit plan emerged from decision of Treasury Board and policy. Terms used such as “may provide” and “may occur” demonstrated that policy could not be characterized as contract or unilateral contractual commitment.
Conseil de la Nation Huronne-Wendat c. R. (Nov. 13, 2014, F.C.A., M. Nadon J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-104-14) Decision at 242 A.C.W.S. (3d) 503 was affirmed.  252 A.C.W.S. (3d) 631.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second degree murder upheld on judicial review and further appeal

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second-degree murder upheld

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second-degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Crown

ARMED FORCES

No breach of procedural fairness in processing of soldier’s grievance

Soldier was member of Canadian Forces since 1995. Soldier started Common Army Phase course in 2003. Soldier failed several performance objectives despite repeated attempts. Investigation regarding evaluation process revealed no discrepancies in application of course standards. Soldier filed grievance regarding his failure and included allegations of harassment. Chief of Defence Staff (CDS) dismissed grievance. Soldier brought application for judicial review. Federal Court judge concluded that there was no breach of procedural fairness in processing of grievance and that it was reasonable for CDS to dismiss grievance. Application for judicial review was dismissed. Soldier appealed. Appeal dismissed. Federal Court judge did not err in rejecting soldier’s submissions that he was denied procedural fairness. Disclosure had been adequate. Delay had not been so oppressive as to taint proceedings. It was not role of court to re-weigh evidence before CDS. Conclusions made by CDS were reasonably open to it to make and decision of CDS was reasonable. Decision fell within range of reasonable outcomes that were defensible in respect of facts and law and reasons were justifiable, transparent, and intelligible.
Moodie v. Canada (Attorney General) (Apr. 7, 2015, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and David G. Near J.A., File No. A-272-14) Decision at 240 A.C.W.S. (3d) 879 was affirmed.  252 A.C.W.S. (3d) 252.

Civil Procedure

PARTIES

Groups granted leave to intervene in appeals respecting Northern Gateway Pipeline Project

Parties were disputing reasonableness and legality of Northern Gateway Pipeline Project’s approval. Consolidated matters were applications and appeals from decisions from Governor in Council, National Energy Board and Joint Review Panel. Amnesty International and Canadian Association of Petroleum Producers brought motions to intervene under R. 109 of Federal Courts Rules (Can.). Motions granted. Both proposed interveners had genuine interest in matter and were able to bring knowledge, skills and resources before court. International law was very much at large on all issues in many different ways in consolidated matter. Amnesty International was granted leave to intervene on terms, primarily because of its expertise in international law issues and potential that international law issues could be relevant, albeit in limited ways. Canadian Association of Petroleum Producers could shed light on discussion of whose interests might be affected if project’s approval was overturned. Matters had complex and important dimensions that needed to be exposed to perspectives beyond those offered by particular parties before court.
Gitxaala Nation v. R. (Mar. 16, 2015, F.C.A., David Stratas J.A., File No. A-56-14, A-59-14, A-63-14, A-64-14; A-67-14, A-437-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14) 252 A.C.W.S. (3d) 39.
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