Law Times

Page 13 Law Times • April 22, 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. SUPREME COURT OF CANADA Aboriginal Peoples CROWN RELATIONSHIP Government acted with persistent inattention and failed to act diligently Following Confederation, Canada obtained title to Red River Settlement. French-speaking Roman Catholic Metis, dominant demographic group in Settlement, resisted control by English-speaking Protestant settlers. Canada agreed, in s. 31 of Manitoba Act, 1870 (Can.), to grant 1.4 million acres of land to Metis children and, pursuant to s. 32, to recognize existing landholdings. Difficulties arose in determining who had right to share of land. Two successive allotments abandoned. Ultimately, lands distributed randomly to eligible Metis children. Canadian government eventually realized number of eligible Metis children underestimated and issued scrip redeemable for land to remaining eligible children. Scrip, based on 1879 land prices, did not permit acquisition of same amount of land in 1885. Position of Metis in Red River Settlement deteriorated over following decades as white settlers increased. Metis applied for declaration that in implementing Manitoba Act, federal Crown breached fiduciary obligations owed to Metis and federal Crown failed to implement Manitoba Act in manner consistent with honour of Crown. Trial judge dismissed claim for declaration, finding that ss. 31 and 32 of Manitoba Act did not give rise to fiduciary duty or duty based on honour of Crown and, in any event, claims barred by limitations and doctrine of laches. Manitoba Court of Appeal dismissed Metis' appeal but appeal to Supreme Court of Canada allowed in part. While Crown undertook discretionary control of administration of land grants, obligations enshrined in ss. 31 and 32 of Manitoba Act did not impose fiduciary duty on government because no pre-existing communal aboriginal interest held by Metis; their interest in land arose from personal history rather than shared distinct Metis identity. Nor was there undertaking by Crown to act in Metis' best interests. Honour of Crown nevertheless required Crown to take broad purposive approach to interpretation of promise and act diligently to fulfill it. Section 31 of Manitoba Act intended to give Metis children head start over expected influx of settlers from the east and to reconcile Metis' aboriginal interests in Manitoba territory with assertion of Crown sovereignty. Section 31 was solemn constitutional obligation and engaged honour of Crown. Section 32, benefit made generally available to all settlers, did not engage honour of Crown. Government acted with persistent inattention and failed to act diligently to achieve purposes of s. 31 grant, inconsistent with behaviour demanded by honour of Crown. Manitoba Metis Federation Inc. v. Canada (Attorney General) (Mar. 8, 2013, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33880) Decision at 190 A.C.W.S. (3d) 927 was reversed. 223 A.C.W.S. (3d) 941. Expropriation COMPENSATION Interference caused by construction of new highway inflicted significant and permanent loss In 2004, province completed new four-lane section of Highway 417 for public safety reasons. New highway routed traffic away from Highway 17. Claimant owned truck stop located on affected part of Highway 17 and took position that undertaking severely impeded road access to truck stop and substantially interfered with use and enjoyment of property. Claimant applied to Ontario Municipal Board for determination of compensation for injurious affection pursuant to Expropriations Act (Ont.). Board concluded claimant established business loss and loss in market value of affected property and awarded damages totalling $393,000 for injurious affection. Divisional Court affirmed board's decision, finding that board reasonably concluded interference was substantial, correctly realized importance of balancing interests and conducted appropriate weighing of competing interests. Court of Appeal set aside board's decision, finding that board failed to consider character of neighbourhood and any abnormal sensitivity of claimant and failed to recognize heightened importance of utility of defendant's conduct where interference was product of essential public service. Claimant's appeal allowed. Reasonableness of interference must be determined by assessing whether individual claimant has shouldered greater share of burden of construction than reasonable to expect without compensation. Interference caused by construction of new highway inflicted significant and permanent loss. Act provides right to compensation for injurious affection if damage results These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. from action taken under statutory authority, action would give rise to liability but for that statutory authority and damage results from construction and not use of works. Only issue was whether claimant could have successfully sued for damages caused by construction under law of private nuisance if highway construction not done under statutory authority. Although focus in nuisance on whether interference suffered by claimant unreasonable, defendant's conduct not irrelevant. Court of Appeal erred in finding that board's application of law of nuisance to facts unreasonable. Board not required to specifically enumerate and refer by name to every factor. Board did not fail to take account of utility of province's activity or fail to engage in required balancing. Board's conclusion that claimant should not be expected to endure permanent interference that caused significant diminution of its market value in order to serve greater public good was reasonable. Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) (Mar. 7, 2013, S.C.C., McLachlin C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ., File No. 34413) Decision at 332 D.L.R. (4th) 641, 202 A.C.W.S. (3d) 310 was reversed. 223 A.C.W.S. (3d) 970. FEDERAL COURT Administrative Law JUDICIAL REVIEW Standard of review of tribunal's interpretation of "family status" was reasonable Complainant, who worked as border services officer on rotating shifts, filed complaint alleging discrimination in employment on basis of family status. Complainant alleged Canadian Border Services Agency ("CBSA") discriminated by limiting fixed day shifts to part-time employment and complainant, who required fixed day shifts to arrange childcare, not eligible for benefits available to full-time employees. At time of Canadian Human Rights Tribunal hearing, complainant on unpaid leave, intending to return to full-time work when children reached school age. Tribunal found complainant proved prima facie employment discrimination and CBSA did not prove hardship. Tribunal held family status should be interpreted broadly, including needs and obligations naturally flowing from identifying one as parent, including parental childcare responsibilities. Tribunal ordered www.lawtimesnews.com CBSA to cease discriminatory practices and that complainant be compensated for lost wages and benefits. Attorney General of Canada's application for judicial review dismissed except in relation to certain remedial orders. Standard of review of tribunal's interpretation of "family status" in Canadian Human Rights Act reasonableness. While Tribunal interpreting home statute and adjudicating within area of expertise, question did not relate to jurisdictional boundaries nor did interpretation raise constitutional question. Standard of review applicable to tribunal's finding of prima facie discrimination and remedial orders reasonableness as these matters involved questions of mixed law and fact. Johnstone v. Canada (Border Services Agency) (Jan. 31, 2013, F.C., Mandamin J., File No. T-141810) 223 A.C.W.S. (3d) 1003. Courts JURISDICTION Only foreign nationals could be targeted when CSIS exercising warrant powers Canadian Security Intelligence Service ("CSIS") applied for warrants pursuant to ss. 16 and 21 of Canadian Security Intelligence Services Act. Issue raised was whether Federal Court has power to issue warrants, pursuant to ss. 16 and 21 of Act, authorizing CSIS to intercept communications of or utilize other intrusive investigative techniques in relation to Canadian citizen, permanent resident or corporation. Section 16(1) of Act provides that CSIS may assist Minister of National Defence or Minister of Foreign Affairs in collection of intelligence relating to activities of "(a) any foreign state or group of foreign states; or (b) any person other than (i) a Canadian citizen (ii) a permanent resident ..., or (iii) a corporation incorporated by or under an Act of Parliament or of the legislature of a province". Section 16(2) states "assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii)". Application included request for assistance in collection of intelligence relating to foreign state(s), corporation or person and included but operative portions of warrants referred specifically to interception of communication of certain named Canadian citizens, permanent residents or corporations. CSIS argued that s. 16(2) of Act does not preclude naming of Canadian citizen, permanent resident or corporation whose communications may be intercepted in warrant so long as request for assistance directed at foreign state(s), corporation or person. Application for warrants dismissed. Degree of potential intrusion on privacy interest of individual named in Part III of warrant, which permits intentional interception, significantly greater than potential intrusion on rights of those whose communications may only be incidentally intercepted. Special Senate Committee Report indicated clear understanding that while requests for assistance could be made to obtain foreign intelligence, "only foreign nationals could be targeted" when CSIS exercising warrant powers in relation to s. 16 request. Section 16(2) specifically seeks to prohibit obtaining assistance in relation to activities of foreign state(s), corporation or person, by targeting intrusive investigative techniques aimed at Canadian citizens, permanent residents or corporations. Canadian Security Intelligence Service (Re) (Dec. 6, 2012, F.C., Mactavish J.) 223 A.C.W.S. (3d) 959. Immigration EXCLUSION AND EXPULSION Delegate relied on behavior for which applicant was never convicted as basis for opinion Applicant applied for judicial review of respondent Minister's delegate's decision. Applicant was citizen of Honduras. He came to Canada in 1991 and was recognized as convention refugee in 1992. He obtained permanent residence in 1995. Applicant was openly gay, transgendered, and was diagnosed with HIV. Applicant was convicted of several criminal offences beginning in 1997. Applicant claimed that convictions were as result of drug addiction and he had been clean and sober since May 2010. Applicant became subject of inadmissibility report under s. 44 of Immigration and Refugee Protection Act (Can.). Delegate determined that appellant should not be allowed to remain in Canada on ground that he was danger to public in Canada, pursuant to s. 115(2)(a) of Act. Delegate found that applicant was not likely to face personalized risk to life, risk of torture or risk of cruel and unusual punishment if he was returned to Honduras. Delegate found that humanitarian and compassionate factors did not outweigh danger that applicant presented to public in Canada. Applicant was to be deported to Honduras. Application granted. Delegate's finding that applicant's crimes were sufficiently serious to forfeit Canada's protection against refoulement was problematic. Crimes were serious and

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