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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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Employment

PUBLIC SERVICE

Inmates participating in work programs not employees

Applicant was member of Canadian Prisoners’ Labour Confederation (CPLC), which was organization of inmates of federal correctional institutions. Objective of CPLC was to compel Correctional Service of Canada to engage in collective bargaining with respect to terms and conditions under which inmates participated in institutional work programs. Officials of Correctional Service of Canada denied applicant and other organizers of CPLC right to sign up members at particular institution. Applicant submitted complaint to Public Services Labour Relations Board. Board concluded it had no jurisdiction to entertain complaint because inmates of federal correctional institution who participated in institutional work program were not employees as defined in s. 2(1) of Public Service Labour Relations Act (Can.), because they were not appointed by Public Services Commission to position created by Treasury Board. Board dismissed complaint without considering merits. Applicant applied for judicial review of board’s decision. Application dismissed. Board’s understanding of facts was open to it on evidence before it. Board’s analysis of jurisprudence and relevant statutory provisions was well explained and soundly reasoned. Inmates participating in work programs organized by Correctional Service of Canada had not been appointed to position in federal public service and were not employees within meaning of Act.
Jolivet v. Treasury Board (Correctional Service of Canada) (Jan. 7, 2014, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-192-13) 236 A.C.W.S. (3d) 484.

Labour Relations

JUDICIAL REVIEW

Appellants did not fall within definition for inclusion in standby pay

Appellants were members of R.C.M.P. emergency response team (“ERT”). Members of ERT were specially trained in use of various tactical procedures and weapons. Service on ERT was voluntary. Members of ERT were expected to be available to respond to emergency situations whenever they arose. Members were required to carry pager at all times and were not permitted to do anything that might impair their ability to respond to emergency situation. Members were not compensated for maintaining constant state of readiness. Appellants filed grievance seeking compensation for time spent on call. Adjudicator determined that appellants were not entitled to standby compensation for time spent on-call. Federal Court found that adjudicator’s decision was reasonable and dismissed application for judicial review. Appellants appealed. Appeal dismissed. Judge selected correct standard of review of reasonableness. Adjudicator had regard to applicable definition and reasonably applied it to appellants’ circumstances. It was open to adjudicator on record to have regard to applicable definition and to find that appellants did not fall within definition for inclusion in standby pay. Adjudicator’s decision was reasonable.
Irvine v. Canada (Attorney General) (Dec. 9, 2013, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and James W. O’Reilly J.A. (ex officio), File No. A-43-13) Decision at 234 A.C.W.S. (3d) 514 was affirmed.  236 A.C.W.S. (3d) 210.

Constitutional Law

CHARTER OF RIGHTS

GST imposed not inconsistent with rights of law firm’s clients

Law firm appealed order that held that GST imposed by s. 165 of Excise Tax Act (Can.), did not infringe and was not inconsistent with rights of law firm’s clients guaranteed by s. 10(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Section 165(1) of Act had valid purpose. Law firm failed to establish that s. 165 of Act violated s. 10(b) of Charter. Law firm was required to produce evidence to demonstrate effect of GST on rights of clients but it failed to do so. Complete lack of evidence was fatal to constitutional challenge. GST imposed by s. 165 of Act did not infringe and was not inconsistent with rights of law firm’s clients guaranteed by s. 10(b) of Charter.
Stanley J. Tessmer Law Corp. v. R. (Dec. 12, 2013, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G.Near J.A., File No. A-104-09, A-50-13, A-51-13, A-52-13, A-53-13, A-54-13) Decision at 224 A.C.W.S. (3d) 508 was affirmed.  236 A.C.W.S. (3d) 259.

Customs and Excise

DECLARATION

Traveller did not have documentation that justified importation of fried chicken

On entering Canada via air from El Salvador, traveller completed Canada Border Services Agency (“CBSA”) declaration card on which he indicated he was not importing food, plant, animal or plant products into country. Upon secondary inspection, $18 worth of fried chicken was found in traveller’s luggage. Traveller received $800 penalty with option of reducing it to $400 by paying within 15 days. At hearing before Canadian Agricultural Review Tribunal, traveller admitted he owned luggage, but denied knowing about chicken. Traveller claimed his mother packed it without his knowledge. Parties agreed CBSA officer was not satisfied on reasonable grounds that chicken was processed in way that would prevent disease from coming into Canada and that no exemptions from Part IV of Health of Animals Regulations (Can.), assisted traveller. However, tribunal found that since traveller had not been given opportunity to justify importation of chicken after it had been discovered, he was not liable for penalty. CBSA brought application for judicial review of tribunal’s decision. Application granted. Clear intention of Parliament in Regulations was to provide for absolute liability regime for violations. Traveller did not have documentation that justified importation of chicken pursuant to exemptions in Part IV of Regulations. Therefore, decision by tribunal that traveller was to have been provided with reasonable opportunity to justify his importation of animal products beyond provisions of Part IV after they were discovered was error of law. Matter was remitted to tribunal for fresh determination.
Canada (Border Services Agency) v. Castillo (Nov. 20, 2013, F.C.A., K. Sharlow J.A., Robert M. Mainville J.A., and David G. Near J.A., File No. A-55-13) 235 A.C.W.S. (3d) 696.

Courts

JUDGES

Appellant could not benefit from subsequent changes in law having not appealed order

Appellant brought motion for order requiring respondent to produce documents and to cross-examine respondent’s officials for pending judicial review. Motion was dismissed. Deputy judge was over age 75 at time of order. Appellant’s motion for reconsideration of order was dismissed. As result of court’s decision deputy judges over 75 years of age could no longer determine matters. Appellant resumed motion for reconsideration claiming deputy judge had no power to make order. Appellant never appealed order. Motion was dismissed because court did not have legal authority to grant relief sought under Rule 397 of Federal Court Rules (Can.), and order was to be taken as valid because it was never appealed. Appeal dismissed. Federal Court had no ability to set aside order using reconsideration power under Rule 397, which was limited to correction of small oversights and clerical mistakes. Matter became res judicata on expiry of deadline for filing notice of appeal. Order was presumed to be valid absent proof of fraud. Appellant could not benefit from subsequent changes in law having not appealed order. Yeager v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 5, 2013, F.C.A., Blais C.J., Sharlow J.A., and David Stratas J.A., File No. A-435-12) 235 A.C.W.S. (3d) 802.

Civil Procedure

DISCOVERY

Report subject to both solicitor-client privilege and public interest privilege

Appellant was criminal lawyer who complained to Canadian Judicial Council (“CJC”) about conduct of Ontario Superior Court Judge alleging that judge had been guilty of serious misconduct during murder trial. CJC engaged lawyer, professor, member of Ontario Bar and distinguished criminal law scholar. Relying on lawyers’s report, chairperson of CJC dismissed appellant’s complaint. Appellant brought application for judicial review. CJC refused to disclose lawyer’s report. Appellant brought motion to compel disclosure of report. Prothonotary granted motion. CJC brought motion to set aside prothonotary’s decision. Judge allowed motion, finding that report was subject to both solicitor-client privilege and public interest privilege. Appellant appealed judge’s decision. Appeal dismissed. Per Evans J.A.: Report was intended to be confidential. CJC did not subsequently waive confidentiality. Inquiring into allegations in order to assist chairperson in making decision on whether to refer complaint to hearing or dismiss it called for analysis of documents and tapes that required skills and knowledge of lawyer. It could be inferred from nature of allegations into which lawyer was to conduct inquiries that role involved legal and factual analysis that required skills and knowledge of lawyer. When lawyer was engaged to assist chairperson in deciding how to proceed with complaint he was engaged in capacity as lawyer and report was subject to solicitor-client privilege. Per Mainville J.A. (concurring): Report of lawyer was subject to public interest privilege. CJC had to ensure that examination respected underlying purpose of constitutional principle of judicial independence. Decision that report should not be disclosed based on public interest privilege was reasonable. Any resulting damage to public interest in due administration of justice was minimal.
Slansky v. Canada (Attorney General) (Sep. 9, 2013, F.C.A., John M.Evans J.A., David Stratas J.A., and Robert M. Mainville J.A., File No. A-497-11) Decision at 211 A.C.W.S. (3d) 288 was affirmed.  235 A.C.W.S. (3d) 350.

Administrative Law

JUDICIAL REVIEW

Only Tax Court could grant relief sought of setting aside or vacating assessments

Taxpayer was Canadian corporation that provided investment advice to Canadian clients and it marketed international stock by foreign-related entities. Taxpayer paid foreign-related entities fees to compensate them for services. Minister of National Revenue assessed taxpayer under Part XIII of Income Tax Act (Can.), concerning fees it paid to private Hong Kong corporation for period between December 2002 to December 2008 inclusive. Following assessments, taxpayer brought application in Federal Court for judicial review, alleging that Minister abused discretion by issuing assessments for Part XIII tax for so many years. Minister brought motion to strike out judicial review application. Prothonotary found that application raised independent administrative law ground of review and was properly within Federal Court and dismissed application. Minister brought motion to quash prothonary’s decision, but was unsuccessful. Minister appealed. Appeal allowed. Three things qualified as obvious fatal flaw that warranted striking out of notice of application for judicial review. First, notice of application failed to state cognizable administrative law claim that could be brought in Federal Court. Second, Federal Court was not able to deal with administrative law claim by virtue of s. 18.5 of Federal Courts Act (Can.), or some other legal principle. Third, Federal Court could not grant relief sought. Essential character of taxpayer’s notice of application for judicial review was attack on legal validity of assessments. Taxpayer failed to state cognizable administrative law claim. In circumstances, Minister did not exercise any discretion that was independent of assessments and there was no discretion that could be abused. Tax Court could consider whether Minister was legally entitled to assess Part XIII tax for years in question and there was no reason why it would not have been possible to deal with tax liability issues related to assessments through regular appeal process in Tax Court. Federal Court was not able to grant the relief sought. Only Tax Court could grant relief sought of setting aside or vacating assessments.
JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue (Oct. 24, 2013, F.C.A., K. Sharlow J.A., David Stratas J.A., and D.G. Near J.A., File No. A-532-12) Decision at 224 A.C.W.S. (3d) 509 was reversed.  235 A.C.W.S. (3d) 288.
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