Law Times

Law Times • November 6, 2017 Page 15 www.lawtimesnews.com CASELAW Federal Court of Appeal Civil Practice and Procedure PLEADINGS Statement of claim Federal Court has jurisdiction over acts and omissions of officers, agents or servants of Crown Plaintiff RD was status Indian and partner of plaintiff R part- nership that had federal licence to sell tobacco products on re- serves. RD was charged with vio- lations of provincial Tobacco Tax Acts for failing to possess provin- cial tobacco permits and federal tobacco licence was not renewed. Plaintiffs brought action against multiple parties, including fed- eral Crown, Canada Revenue Agency (CRA) employees, and RCMP officers. Prothonotary granted federal Crown's motion and struck statement of claim against all defendants except federal Crown. Federal Court judge allowed plaintiffs' appeal in respect of CRA employees and RCMP officers (individual de- fendants) and re-added individ- ual defendants to style of cause. Judge held that prothonotary's order was clearly wrong in hold- ing that Federal Court lacked jurisdiction over claim against individual defendants on basis that their presence was not vital to final issue of case, which was not requirement in test. Judge held that it was not plain and ob- vious that Federal Court lacked jurisdiction to entertain claims against individual defendants, as three-part test was met. Section 17(5)(b) of Federal Courts Act conferred jurisdiction to Federal Court over acts and omissions of officers, agents or servants of Crown. While plaintiffs' causes of action against individual de- fendants may be based in civil liability and in tort, claim was that individual defendants' conduct was not authorized by federal legislation under which they purported to act. Plaintiffs successfully demonstrated that their claim was in pith and sub- stance based on federal law and was governed by detailed federal statutory framework essential to outcome of the case. Indi- vidual defendants appealed. Ap- peal dismissed. Plaintiffs' action against individual defendants was not bereft of any possibility of success at this time. Canada v. Dickson (2017), 2017 CarswellNat 4749, 2017 FCA 198, M. Nadon J.A., Gauth- ier J.A., and Trudel J.A. (F.C.A.); affirmed (2016), 2016 Carswell- Nat 10762, 2016 CarswellNat 3210, 2016 FC 836, 2016 CF 836, Sylvie E. Roussel J. (F.C.). Intellectual Property COPYRIGHT Copyright Board Board entitled to broad margin of appreciation in considering specialized issues Members of collective society R were performers and sound recording makers. Under ss. 67 to 69 of Copyright Act collec- tive society was required to file with Copyright Board proposed tariffs to receive royalties for use of their repertoires. Copyright Board certified collective society R tariff setting royalties for the use of published sound record- ings embodying musical works and performers' performances of such works in non-interactive and semi-interactive webcasting for years 2009-2012. Supreme Court of Canada released judg- ment which affirmed impor- tance of overarching principle of balance both when interpret- ing and applying Act. Collective society R applied for judicial re- view from decision. Application dismissed. Board was entitled to broad margin of appreciation in considering complex and special- ized issues in case. Board's deci- sion was not outside of that mar- gin of appreciation. Board chose to set rates in accordance with one-to-one ratio without regard to market conditions evidenced by contracts put before it. Board's approach was acceptable and de- fensible application of facts and law. Submission by collective so- ciety R that Parliament used the term "equitable remuneration" in Act to describe different kind of remuneration from royalties to which copyright owners like members of collective society S were entitled was based on misin- terpretation of Act. Board's anal- ysis, focusing on value of sound recording rather than input costs, was fully consistent with balance. It was reasonable for Board not to perform precise technological neutrality analysis mandated by Supreme Court given dearth of evidence before it. Re:Sound v. Canadian As sociation of Broadcasters (2017), 2017 CarswellNat 2963, 2017 FCA 138, David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A. (F.C.A.). Labour and Employment Law LABOUR LAW Bargaining rights Board required to consider secret ballot vote amendments Following employer's acquisi- tion of other company, union brought application for review of bargaining unit pursuant to s. 18 of Canada Labour Code. Union sought to add 20 employ- ees from newly acquired compa- ny whose job descriptions were akin to those found in descrip- tion of bargaining unit. Union's application was granted by Can- ada Industrial Relations Board. Board noted its authority under s. 18 of Code to review existing bargaining unit and add new or previously excluded employees. Board did not address amend- ments to certification process under Division III of Code which came into effect in June 2015 as result of Employees' Vot- ing Rights Act and introduced requirement for secret ballot representation vote. Employer brought application for judi- cial review of board's decision. Application granted. Board's decision set aside and union's application remitted to board for redetermination. Board directed to determine extent, if any, to which amendments made to Division III of Code af- fected union's application, and to determine whether union had demonstrated double majority support for proposed addition to bargaining unit. Board erred in continuing to apply interpre- tation of s. 18 of Code that was displaced by secret ballot vote amendments enacted as part of Employees' Voting Rights Act without providing any explana- tion as to how it reached its con- clusion. Board did not explain why secret ballot requirement introduced into Division III of Code should not be read into s. 18 of Code. Rogers Communications Canada Inc. v. Maintenance and Service Employees' Asso ciation (2017), 2017 CarswellNat 2788, 2017 FCA 127, Eleanor R. Dawson J.A., Yves de Montigny J.A., and J. Woods J.A. (F.C.A.). Federal Court Immigration and Citizenship REFUGEE PROTECTION Credibility Reliance on Wikipedia evidence cause for concern but error of no consequence Applicants, husband, wife and daughter, were citizens of Peru who claimed protection on ba- sis that they had been assaulted and threatened by former police officer in Peru. Refugee Protec- tion Division (RPD) dismissed claim finding applicants lacked credibility, and that wife and daughter were entitled to ac- quire citizenship in Argentina. Applicants applied for judicial review. Application granted in part. It was unreasonable for RPD to conclude that all of ap- plicants' evidence was discred- ited as result of single contradic- tion related to one element of narrative. It was open to RPD to reach negative credibility find- ing as result of inconsistency related to timing of decision to leave Peru, but it was not rea- sonable to rely on inconsistency to discount remainder of narra- tive. RPD reasonably concluded that wife and daughter were entitled to obtain Argentine citizenship by complying with mere formalities, and that find- ing was determinative of claim of wife and daughter. While re- liance on Wikipedia evidence had been found to be cause for concern, error was of no conse- quence because there was other documentary evidence before RPD that established process for obtaining citizenship. In circumstances, it was not un- reasonable for RPD to conclude that wife's efforts were insuffi- cient to demonstrate that it was not within her power to obtain citizenship in Argentina. It was reasonable for RPD to con- clude that Argentine citizenship would be available to daughter based on wife's ability to ob- tain citizenship. Matter was returned for redetermination respecting only husband's claim for protection. Esquivel v. Canada (Minis ter of Citizenship and Immi gration) (2017), 2017 Carswell- Nat 1305, 2017 FC 290, Patrick Gleeson J. (F.C.). 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