Law Times

Page 15 Law Times • September 2, 2013 caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Loss of political office before expiration of term found to constitute irreparable harm Appellants sought to stay judgment declaring that election appeal committee made final and binding decision requiring new elections for offices of chief and council. Last elections resulted in election of one appellant as chief and three appellants as councillors. Complaints were made that challenged elections, including complaint made by respondent. Committee recommended that election be set aside and new election process be undertaken. First Nation sought to set aside decision and motion was brought to stay decision. Stay motion was dismissed on basis that committee only made recommendation for new election and recommendation was not decision or order that had to be accepted or acted upon by First Nation. On respondent's application, Federal Court Judge concluded that committee's decision that new election should be held was binding on First Nation. Appellants sought to stay judgment pending appeal. Application granted. Declaratory judgment was binding and had legal effect. Effect of declaratory judgment was that new elections were to be called without further delay. Chief and councillors of First Nation were bound by judgment and were compelled to implement its effects. There was serious issue as result of contradictory findings. If stay were not granted then appellants would be required to follow committee's recommendation and call new election. If stay were denied then appellants risked losing their political offices before term expired. Loss of political office prior to expiration of normal term of office was generally found to constitute irreparable harm. Appellants would suffer irreparable harm if new election were held. Appellants had right to appeal and that right would become moot if election were held as result of denying stay. Calling election now would result in more uncertainty and confusion in affairs of First Nation. Assiniboine v. Meeches (Apr. 29, 2013, F.C.A., Robert M. Mainville J.A., File No. A-102-13, A-101-13) 228 A.C.W.S. (3d) 3. SUPREME COURT OF CANADA Administrative Law JUDICIAL REVIEW Rule or policy unilaterally imposed must be consistent with collective agreement Irving Pulp & Paper, which operated paper mill, unilaterally adopted workplace policy which included mandatory and random alcohol testing for employees holding safety sensitive positions. Computer selected names of employees randomly. Union filed policy grievance challenging "without cause" aspect of policy. Majority of arbitration board concluded mill operation, while constituting dangerous work environment, did not fall within ultra-dangerous category. Majority, considering absence of evidence relating to alcohol use in workplace, found that Irving Pulp & Paper failed to establish need for policy by demonstrating mill operations posed sufficient risk of harm that outweighed employees' right to privacy. Application judge allowed application for judicial review, finding it un- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. reasonable to require evidence of pre-existing alcohol problem once majority concluded mill represented dangerous workplace. Union's appeal dismissed but further appeal allowed. Employers in unionized workplace not permitted to "promulgate unreasonable rules and then punish employees who infringe them". Employers may discharge or discipline employees only for just cause or reasonable cause. Any rule or policy unilaterally imposed by employer must be consistent with collective agreement and be reasonable. Irving Pulp & Paper Ltd. v. CEP, Local 30 (Jun. 14, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34473) Decision at 216 A.C.W.S. (3d) 2 was reversed. 228 A.C.W.S. (3d) 5. Civil Procedure DISCOVERY Negotiations undertaken with intent of settling action inadmissible Appellant owned gas project. Paint system used for corrosion protection on structures supplied by respondent. Appellant alleged that paint not suitable for use and failed prematurely. In absence of contractual relationship, appellant commenced action based in negligence, negligent misrepresentation and breach of collateral warrant against respondent and other contractors and applicators responsible for supplying, fabricating and preparing steel and for applying paint coatings. Appellant entered into three Pierringer Agreements, allowing settling defendants to withdraw from litigation and leaving remaining defendants responsible only for loss they actually caused. Terms of agreements disclosed to respondent but not amounts paid by settling defendants. Respondent's application for production of settlement amounts dismissed, but appeal to Nova Scotia Court of Appeal allowed. Appellant's appeal allowed. Settlement privilege is class privilege subject to prima facie presumption of inadmissibility. Privilege clearly applies to "without prejudice" communications, but precise words not required. Any negotiations undertaken with intent of settling action inadmissible. Exceptions will be found when justice of case requires it. Nonsettling defendants argued there should be exception to privilege for settlement amounts because information required for them to conduct litigation but no tangible prejudice created by withholding settlement amounts which could be said to outweigh public interest in promoting settlements. Pierringer Agreements developed to address obstacles to settlement that arose in multiparty litigation and routinely include additional protections for non-settling defendants. Settlement required that plaintiffs get production of all relevant evidence from settling defendants and make evidence available to non-settling defendants on discovery. No restriction on nonsettling defendants' access to experts retained by settling defendants and agreements specified that non-financial terms would be disclosed to court and non-settling defendants. Nonsettling defendants' had assurance they would not be held liable for more than their share of damages and appellant agreed to disclose settlement amounts at end of trial, once liability determined. Further, inherent in Pierringer Agreements that non-settling defendants can only be held liable for their share of damages and will be severally, not jointly, liable with settling defendants, so not clear how knowledge of settlement amounts materially affected ability of non-settling defendants to know and present their case. Sable Offshore Energy Inc. v. Ameron International Corp. (Jun. 21, 2013, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34678) Decision at 210 A.C.W.S. (3d) 348 was reversed. 228 A.C.W.S. (3d) 78. ONTARIO CRIMINAL CASES Appeal GROUNDS Jury permitted to rely on doctrine of innocent agent to convict accused Appeal by accused from her conviction of six counts of uttering forged document and six counts of trafficking in controlled substance. During her employment by doctor accused created false prescriptions for oxycodone. She did so at request of her brother. Brother or one of his accomplices would go to various pharmacies with forged prescription and they were able to acquire 500 oxycodone pills illegally. Brother pleaded guilty to possession for purpose of trafficking and he implicated accused. Appeal dismissed. When charge was read as whole it gave jury tools it needed concerning appropriate burden and standard of proof. Accused's submission that, since she did not cause oxycodone to be dispensed she could not be held liable under common law doctrine of innocent agent, was rejected. Evidence established uninterrupted causal nexus between accused and pharmacists who dispensed pills. Jury was therefore permitted to rely on doctrine of innocent agent to convict accused as principal. Get fast and easy access to l t yo ble to y u s and itt's availa s a day. 24 hour Canada's legal professionals! Canada's most comprehensive online directory of legal professionals gives you a direct route to the information you need. departments location and area of practice Visit www.CanadianLawList.com and find out how we're serving you better than ever. compiled by top Canadian legal researchers Untitled-1 1 www.lawtimesnews.com 13-01-03 9:02 AM

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