Law Times

Page 14 September 10, 2018 • Law timeS www.lawtimesnews.com Supreme Court of Canada Human Rights PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Human Rights Code protects employees who suffer discrimination with sufficient connection to employment Complainant was civil engi- neer who was subjected to de- rogatory comments and emails regarding his place of origin, religion and sexual orientation from co-worker who worked for another employer on same construction site. Complain- ant filed complaint with British Columbia Human Rights Tri- bunal alleging discrimination contrary to s. 13(1)(b) of Human Rights Code. Co-worker and CC Ltd. unsuccessfully brought application to dismiss on basis of lack of jurisdiction, submit- ting that complainant was not in employment relationship with them. Co-worker unsuccessfully brought application for judicial review. Co-worker appealed, which was allowed on basis that s. 13(1)(b) was not so wide as to encompass conduct by any per- son that might have adversely affected employee in their em- ployment. Tribunal appealed. Appeal allowed. Human Rights Tribunal did not err in conclud- ing that co-worker's conduct was covered by s. 13(1)(b) of Code. Scope of s. 13(1)(b) of Code was not limited to protecting em- ployees solely from discrimina- tory harassment by their supe- riors in workplace. Section 13(1) (b) did not restrict who could perpetrate discrimination but rather it defined who could suf- fer employment discrimination. Code's protection extended to all employees who suffered dis- crimination with sufficient con- nection to their employment context, which may include dis- crimination by their co-workers even when co-workers had dif- ferent employer. British Columbia Human Rights Tribunal v. Schrenk (2017), 2017 CarswellBC 3506, 2017 CarswellBC 3507, 2017 SCC 62, 2017 CSC 62, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellBC 869, 2016 BCCA 146, MacKenzie J.A., Willcock J.A., and Fenlon J.A. (B.C. C.A.). PRACTICE AND PROCEDURE Judicial review Where presumption of resonablenes applied, contextual appraoch should be applied sparingly All complaints arose from lin- gering effects of enfranchise- ment, which was discriminatory and damaging policy previously enshrined in Indian Act. Com- plainants filed human rights complaints, alleging that their inability under provisions in Indian Act to register their chil- dren as "Indians" constituted discrimination in provision of services customarily available to general public on grounds of race, ethnicity, sex or family sta- tus. Canadian Human Rights Tribunal determined that com- plaints were direct challenge to provisions such that they did not allege discriminatory practice under s. 5 of Canadian Human Rights Act (CHRA), as adoption of legislation was not service customarily available to general public. Tribunal ruled that chal- lenge to provisions in Indian Act could only be brought un- der s. 15 of Canadian Charter of Rights and Freedoms in court. On judicial review, both Fed- eral Court and Federal Court of Appeal found that tribunal decisions were reasonable and should be upheld. Canadian Human Rights Commission appealed. Appeal dismissed. Standard of reasonableness ap- plied. In applying standard of review analysis, there was no principled difference between human rights tribunal and any other decision maker interpret- ing its home statute. When ap- plied to statutory interpretation exercise, reasonableness review recognized that delegated deci- sion maker was better situated to understand policy concerns and context needed to resolve any ambiguities in statute. Where presumption of reasonableness applied, contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning standard of review analysis. Canada (Human Rights Commission) v. Canada (At- torney General) (2018), 2018 CarswellNat 2838, 2018 Car- swellNat 2839, 2018 SCC 31, 2018 CSC 31, McLachlin C.J.C., Abel- la J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); af- firmed (2016), 2016 CarswellNat 3213, 2016 CarswellNat 9942, 2016 FCA 200, 2016 CAF 200, J.D. Denis Pelletier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.). Professions and Occupations BARRISTERS AND SOLICITORS Organization and regulation of profession Law Society of Upper Canada was required to consider admissions policy that potentially imposed inequitable barriers to entry and harmful learning environment Appellant university, TWU, educational arm of evangeli- cal Christian church, required its students to sign commu- nity covenant ("Covenant") that members abstain from certain conduct, including "sexual inti- macy that violates the sacredness of marriage between a man and a woman". TWU asked respon- dent Ontario law society, LSUC, to accredit its proposed faculty of law, to be located in British Columbia. This issue proved to be contentious in legal commu- nity due to mandatory require- ment in Covenant to abstain from sexual intimacy outside marriage, or, even in marriage, in same-sex relationships. After series of submissions and meet- ings, LSUC Benchers voted not to accredit TWU's law school. TWU and one potential stu- dent unsuccessfully sought ju- dicial review of LSUC's decision. TWU and potential student appealed. Appeal dismissed. LSUC's consideration of TWU's admissions policy in deciding whether to accredit its proposed law school did not amount to LSUC regulating law schools. LSUC considered that policy in context of its decision to ac- credit law school for purpose of lawyer licensing in Ontario in exercising its authority as gate- keeper to legal profession in that province. LSUC did not purport to make any other decision gov- erning TWU's proposed law school or how it should operate. In promoting public interest and public confidence in legal pro- fession, LSUC was required to consider admissions policy that potentially imposed inequitable barriers to entry and harmful learning environment. Approv- ing or facilitating these require- ments could undermine public confidence in LSUC's ability to self- regulate in public interest. It was therefore within scope of its mandate under Law Society Act. Trinity Western Univer- sity v. Law Society of Upper Canada (2018), 2018 Carswel- lOnt 9570, 2018 CarswellOnt 9571, 2018 SCC 33, 2018 CSC 33, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 Carswel- lOnt 10465, 2016 ONCA 518, J.C. MacPherson J.A., E.A. Cronk J.A., and G. Pardu J.A. (Ont. C.A.). Federal Court of Appeal Tax INCOME TAX Tax credits Prescribed information included information necessary to determine whether activity qualified as Scientific Research and Experimental Development Taxpayer filed amended tax return for 2011 taxation year to report Scientific Research and Experimental Develop- ment (SRED) expenditures for two projects and to claim cor- responding refundable invest- ment tax credit amounts. On Schedule 60 of Form T661, tax- payer provided project informa- tion in boxes 240, 242 and 244 only for second project and not for first one. Minister of Nation- al Revenue reassessed taxpayer under Income Tax Act, granting tax credit for second project but not for first project. Taxpayer's appeal was dismissed. Tax Court judge concluded that prescribed form filed by taxpayer did not contain all prescribed informa- tion that was required because no information was provided in three boxes on form. Judge determined that missing infor- mation was important to ver- ify claim because it addressed 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. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. CASELAW Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM

• Cover