Law Times

Page 14 May 27, 2013 Law Times • 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 Appeal NO SUBSTANTIAL WRONG Evidence of accused's membership in conspiracy overwhelming Accused charged with conspiracy to commit murder. Two sisters who were friends of accused murdered their mother by inducing unconsciousness with alcohol and pills and drowning her in bathtub. Accused alleged to have provided pills and assisted in establishing alibi. Crown relied on Internet chat logs between accused and sisters in which ideas for murder were discussed. Trial judge instructed jury that accused could be convicted as principal or as party to conspiracy. Court of Appeal upheld accused's conviction. Appeal dismissed. Party liability exists for offence of conspiracy only for persons who aid or abet formation of agreement that underlies charge. In accused's case jury should not have been instructed on party liability. Evidence of accused's membership in conspiracy was overwhelming and error could not have affected verdict. R. v. F. (J.) (Mar. 1, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 34284) 105 W.C.B. (2d) 449. Sentence PRINCIPLES Collateral immigration consequence a relevant factor Trial judge sentencing accused to two years' imprisonment for drug offences based on joint submission. Accused had been convicted of offences of production of marijuana, possession of marijuana for purpose of trafficking. Accused has prior conviction. Trial judge not being advised accused non-citizen, would face removal order with no appeal for sentence of two years. Crown on appeal conceding sentence should be varied to two years less one day. Majority of appeal court dismissing appeal, holding collateral immigration consequence should not skew otherwise fit sentence, particularly in light of accused's prior conviction. Appeal to Supreme Court of Canada allowed, sentenced varied to two years less one day' imprisonment. Collateral immigration consequence a relevant factor to consider in crafting proportionate sentence. Appeal court has authority to vary sentence where sentencing judge unaware of collateral con- sequence. Where Crown does not consent to appeal, some evidence should be adduced for consideration by Appeal Court. In light of Crown concession, court of appeal erred by refusing sentence reduction based on prior convictions, belief accused abused Canada's hospitality. R. v. Pham (Jan. 18, 2013, S.C.C., LeBel J., Fish J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34897) Decision at 102 W.C.B. (2d) 83 was varied. 105 W.C.B. (2d) 488. FEDERAL COURT OF APPEAL Injunctions INTERLOCUTORY RELIEF Reductions in income assistance would cause harm to recipients This was appeal of judge's decision granting interlocutory injunction. Canada had provided essential services and programs to Indians residing on reserves. It decided to do away with reasonably comparable approach for income assistance program. There was now requirement of strict compliance with provincial eligibility criteria and assistance rates. Respondents took exception to change and sought relief by bringing application for judicial review. Respondents then applied for interim relief in form of order restraining Canada from changing reasonably comparable approach until final disposition of judicial review application. Injunction was granted that prohibited implementation of rule of strict compliance with provincial rates and standards for income assistance on First Nations reserves in Nova Scotia, New Brunswick and Prince Edward Island until decision was issued in underlying application for judicial review. Appeal dismissed. Deference was owed to judge's decision. It had not been shown that judge proceeded on wrong principle of law, gave insufficient weight to relevant factors, and seriously misapprehended facts or that obvious injustice would otherwise result. In context of evolving law related to aboriginal consultation it was not unreasonable to suggest that there might be duty to hold meaningful consultation about merits of changing approach prior to its implementation. Judge did not err in finding respondents met low threshold of establishing serious issue to be tried. It was reasonable for judge to draw inference that reductions in income assistance would cause harm to These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. individual recipients who could not be compensated through subsequent monetary award. Small changes in resources available to poor and vulnerable Canadians to meet basic essential needs could result in serious harm. Effect of order was to maintain status quo. Judge committed no error in finding that harm resulting from reduction in benefits to vulnerable individual recipients outweighed minor inconvenience Canada might suffer from delay in implementing changes. Simon v. Canada (Attorney General) (Nov. 28, 2012, F.C.A., Marc Noël J.A., Robert M. Mainville J.A., and Wymann W. Webb J.A., File No. A-110-12) Decision at 216 A.C.W.S. (3d) 740 was affirmed. 225 A.C.W.S. (3d) 211. FEDERAL COURT Aboriginal Peoples STATUS Place of birth does not change one's ancestry Applicant sought to set aside decision of Inuit Membership Appeal Board. Applicant applied to be enrolled as beneficiary of Labrador Inuit land claims agreement. Membership committee made preliminary decision that applicant did not meet criteria for enrolment as beneficiary because she had less than one-quarter Inuit ancestry, as required by agreement. Applicant appealed. Board determined that applicant did not meet membership criteria of agreement. Application granted. Board's decision lacked intelligibility. It appeared that board interpreted agreement such that applicant only inherited Inuit blood of ancestor born in Labrador settlement area even if parents of ancestor were 100 per cent Inuit. However, board's treatment of ancestors was not consistent. Lack of consistency was part of reason why decision was unintelligible. If board determined that ancestor's blood quantum only counted toward applicant's Inuit blood quantum if ancestor was born in Labrador settlement area then it failed to apply interpretation consistently and decision was unreasonable. It was also unreasonable for board to find that ancestor's blood quantum only counted toward applicant's Inuit blood quantum if ancestor was born in Labrador settlement area. Absent clear and unambiguous language to contrary, one did not lose one's ancestry because of where one was born. Blake v. Nunatsavut (First Miniswww.lawtimesnews.com ter) (Dec. 11, 2012, F.C., Russel W. Zinn J., File No. T-568-12) 225 A.C.W.S. (3d) 2. Human Rights Legislation DISCRIMINATION Employee had substantial childcare family obligation Employee's home terminal was Jasper. Employee was on laid off status and was recalled to report to temporary work assignment in Vancouver. Employee advised employee could not report to Vancouver because of childcare issues. Employee did not report by deadline and employer terminated employment. Employee filed complaint alleging employer discriminated against employee on basis of family status by failing to accommodate employee parental childcare obligations and by terminating employment. Tribunal allowed complaint of human rights discrimination because of family status by employer. Application for judicial review was dismissed. Tribunal did not err in finding parental childcare obligations came within term "family status" in Canadian Human Rights Act. Interpretation was reasonable. Tribunal applied correct test for finding prima facie discrimination on basis of family status. Tribunal did not err in finding that employer did not meet duty to accommodate employee. There was nothing unreasonable about determination that employer did not meet duty to accommodate. Employee satisfied requirement of having substantial childcare family obligation. Employee did not have opportunity to respond to major shortage recall. Employer's failure to respond to employee denied employee opportunity to realistically explore and consider options for childcare in responding to shortage or accessing accommodation available under employer's policy or collective agreement. Tribunal had sufficient basis to conclude employer's conduct was reckless. Award of compensation was reasonable. Canadian National Railway v. Seeley (Feb. 1, 2013, F.C., Leonard S. Mandamin J., File No. T-1775-10) 225 A.C.W.S. (3d) 195. Immigration REFUGEE STATUS System that failed to meet fairness standards could not provide adequate state protection Applicant was citizen of United States and was in army. Applicant believed acts were illegal and in violation of international law. Applicant was unsuccessful in resigning through official channels. Applicant went absent without leave. Applicant was denied refugee status because there was no serious possibility applicant would be persecuted if returned to United States. There was adequate state protection in United States. RPD found applicant did not come within ss. 169 and 171 of Handbook on Procedures and Criteria for Determining Refugee Status. Application for judicial review was allowed. Decision lacked justification, transparency and intelligibility because it was not possible to ascertain what RPD meant by fairness in United States system or why that fairness equated with adequacy when it obviously fell short of Canadian and international standards. It was error in law to conclude that system that failed to meet basic fairness standards that were internationally recognized to be fundamental to any tribunal system could nevertheless provide adequate state protection. RPD disregarded guidelines and principles in Handbook. RPD was unreasonable in preferring professor's position given professor provided no acceptable standard of fairness against which to measure adequacy. Information directly contrary to RPD's findings should have been referenced and dealt with and it rendered RPD's conclusions on differential punishment unreasonable. Fundamental problem with RPD's approach on issue of Handbook was that RPD assessed applicant's personal experiences as isolated incidents that were not condoned by United States and were not systemic or matter of policy while completely ignoring objective documentary evidence that confirmed opposite was true. Tindungan v. Canada (Minister of Citizenship and Immigration) (Feb. 1, 2013, F.C., James Russell J., File No. IMM-5069-12) 225 A.C.W.S. (3d) 201. ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Breach of contract issues capable of resolution on summary judgment basis This was appeal of dismissal of application to certify action as class proceeding. Appellants were franchisees of respondent franchisors. Appellants commenced proposed class action against respondents based on several different causes of action. Motion judge concluded that certification would be appropriate for number of issues, but that none of proposed claims could

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