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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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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.

Employment Insurance


Complete, whole day did not necessarily mean calendar day

Claimant became entitled to employment insurance benefits effective July 3, 2011. For short period of time claimant was outside Canada and unavailable for work. Claimant left Canada on morning of first day and returned during evening of second day. Pursuant to s. 37(b) of Employment Insurance Act (Can.), claimant was not entitled to receive employment benefits for any period she was not in Canada. Umpire found that first day did not count in calculation of period claimant was outside Canada, but second day did. Attorney General applied for judicial review of umpire’s decision. Application dismissed. Interpretation that would disentitle person from benefits for fractions of days would not further administrative efficiency. Express words, design and architecture of Act supported view that “period” in s. 37(b) was to be expressed only in whole days, not fractions of days. Person who was outside Canada for fraction of complete day was not counted as “period” outside of Canada under s. 37(b). Claimant was away for total of one day, but on each calendar day she was away for only fraction of day. Absence on each calendar day should not be disregarded. “Period” in s. 37(b) was period, expressed in complete, whole days, during which claimant was outside of Canada. Complete, whole day did not necessarily mean calendar day and it could include continuous 24-hour period that straddled two calendar days. Claimant was outside of Canada for one complete whole day and she was not entitled to receive one day of benefits.
Canada (Attorney General) v. Picard (Feb. 17, 2014, F.C.A., K. Sharlow J.A., David Stratas J.A., and D.G. Near J.A., File No. A-3-13) 239 A.C.W.S. (3d) 659.

Social Welfare


Board did not ask whether applicant capable of pursuing substantially gainful employment

Applicant was injured in motor vehicle accident and suffered soft tissue injuries, depression and myofascial pain syndrome. Applicant took yoga and was employed on minimal part-time basis as yoga instructor well after time of minimum qualifying period. Applicant’s application for disability pension under Canada Pension Plan was denied. Board dismissed appeal finding applicant’s disability was not severe because she was capable of substantially gainful employment. Applicant sought judicial review. Application granted. Social Security Tribunal was directed to grant appeal and to make order granting application for disability benefits. Decision was unreasonable. Board did not apply legal standards. Board latched onto Review Tribunal’s reasons rather than conducting de novo analysis as required. Board did not ask whether applicant was capable of regularly pursuing substantially gainful employment and did not assess whether applicant had severe and prolonged disability. Board failed to examine applicant’s condition at time of her minimum qualifying period and afterward, and looked only at her more recent condition. Board did not assess whether $75 per week was substantially gainful employment or if applicant could obtain other substantially gainful employment. Case was exceptional in that delay was substantial, record showed prejudice would be caused by further delay, and there was sparse evidence in support of outcome reached by board. Benefits were meant to address serious condition. Record showed applicant’s disability was severe at time of minimum qualifying period.
D’Errico v. Canada (Attorney General) (Apr. 10, 2014, F.C.A., Pierre Blais C.J., K. Sharlow J.A., and David Stratas J.A., File No. A-47-13) 239 A.C.W.S. (3d) 532.
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