Law Times

Page 13 Law Times • June 3, 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 Civil Procedure DISCOVERY None of undisclosed parts of officers' notebooks relevant Defendant brought motion to set aside prothonotary's order. Plaintiff alleged that defendant unlawfully seized her Croatian passport, her Croatian identity card and two photographs during primary inspection at Calgary International Airport. Plaintiff claimed she gave items to officer when she was re-entering Canada. Part of officer's notebook had been produced. On plaintiff 's motion, prothonotary ordered defendant to produce the officer's entire original notebook, as well as notebooks of officer's supervisors. Motion granted. It had to be determined whether prothonotary made error of law. In order to obtain inspection of complete notebooks of officers, they must be show to be relevant within meaning of Rule 222(2) of Federal Court Rules (Can.). Prothonotary made reviewable error by stating that full notebooks of officers had to be produced for inspection. Prothonotary had stated that she was not satisfied that remainder of officer's notebook was likely relevant. Evidence disclosed that neither supervising officer had any notation with respect to incident in notebooks. They were merely officer's supervisors on day in question. They did not have any contact with plaintiff. None of undisclosed parts of officers' notebooks were relevant within meaning of Rule 222(2). There was no evidence to suggest that other entries in officer's notebook had anything to do with present case. Only document relevant to case was entry made in notebook on day of incident. It was not necessary to list supervising officers' notes for date of incident, as they were not relevant to matter at issue. Stubicar v. Canada (May. 7, 2012, F.C., John A. O'Keefe J., File No. T-2102-10) 225 A.C.W.S. (3d) 663. Employment Insurance OVERPAYMENTS Irrelevant referees found applicant did not knowingly give inaccurate information Applicant was employed by British Columbia labour contracting firm until 1997 lay-off. Following applicant's lay-off, firm was investigated by Employment Insurance Commission and Canada Revenue Agency. Investigation led to recalculation of claims and imposition of penalties. Seventysix labourers, including appli- cant, appealed EIC's insurability ruling to Tax Court. Applicant appealed penalties imposed by commission to Board of Referees. Referees allowed applicant's appeal against penalty imposed for making false or misleading statements. Relying on referee's favourable decision, applicant requested commission write-off benefits overpayment resulting from firm's errors. Commission refused request, on basis applicant was responsible for error stated in benefits application. Applicant requested judicial review. Application dismissed. Section 56 of Employment Insurance Regulations (Can.), applied. No dispute applicant's application for benefits contained error with respect to duration of employment. Parliament's clear intention to place full responsibility for error or misrepresentation on benefits application on applicant. Irrelevant that referees found applicant did not knowingly give inaccurate information. Applicant's failure to correct employer's error on record of employment gave rise to overpayment of benefits. Had applicant submitted correct information, investigation would have revealed employer's error and overpayment would not have occurred. Mangat v. Canada (Attorney General) (Dec. 3, 2012, F.C., Douglas R. Campbell J., File No. T-1026-10, T-1027-10, T-102810, T-1030-10, T-1031-10) 225 A.C.W.S. (3d) 717. Human Rights Legislation DISCRIMINATION Not unreasonable to sever incidents which had occurred years before Application by complainant for judicial review decision by commission. Complainant alleged several discriminatory incidents by his employer from 2003 to April 2010. Commission held that incidents that occurred prior to March 31, 2010 were separate and independent of more recent discriminatory acts alleged in complaint and that it was not appropriate to deal with complaint because complainant did not do everything that reasonable person would do in particular circumstances to proceed with complaint with respect to those incidents. Application dismissed. It was not unreasonable for commission to sever incidents which had occurred years before. It could not be said that earlier incidents were all connected. One incident was workplace dispute, and another was related to when complainant could return to work. This was not case of incidents straddling one-year timebar, as some had occurred seven years earlier. Heiduk v. Whitworth (Feb. 1, These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. 2013, F.C., Sean Harrington J., File No. T-256-12) 225 A.C.W.S. (3d) 795. Immigration EXCLUSION AND EXPULSION Officer obliged to consider whether unavailability of medication "exigent personal circumstance" Applicant visited Canada from Ukraine in 2007. Application for refugee status was refused. Applicant suffered: two subsequent car accidents resulting in physical limitations and mental health issues; major depression; posttraumatic stress disorder; and severe phobia. Applicant relied on Canadian family members, medications and social assistance. Applicant attempted to hang self in November 2011. Applicant unsuccessfully applied for pre-removal risk assessment ("PRRA"). Judicial review of PRRA decision pending. Applicant requested deferral of removal pending application for humanitarian and compassionate relief. Applicant feared lack of appropriate treatment and possible mistreatment in Ukraine. Officer denied request. Application requested judicial review of decision not to defer removal. Application allowed. Applicant expressly raised concern as to access to necessary medication in Ukraine. Officer obliged to consider whether unavailability of medication an "exigent personal circumstance" justifying deferral. Officer failed to address or refer to evidence on issue. Officer's decision unreasonable. Averin v. Canada (Minister of Public Safety and Emergency Preparedness) (Dec. 10, 2012, F.C., James W. O'Reilly J., File No. IMM2884-12) 225 A.C.W.S. (3d) 797. Industrial and Intellectual Property TRADEMARKS Proposed mark deceptively descriptive Respondent provided personnel employment services, including engineers, designers, drafters and technicians. Respondent submitted trademark applications for "Kelly Engineering Resources". Respondent not qualified as professional engineer. Applicant professional association represented professional engineers. Applicant opposed respondent's application. Hearing officer's December 2010 decision rejected applicant's objection. Applicant appealed under s. 56 of Trademarks Act (Can.). Appeal allowed. Proposed mark clearly wrong. Mark wrongly implied responding could provide engineering employment services to engineers and companies seeking to hire engineers. Acceptance of tradewww.lawtimesnews.com mark could place public interest at risk. Regulation of engineering profession prioritized public interest. Necessary that trademark in engineering-related field not be deceptively descriptive. Canadian Council of Professional Engineers v. Kelly Properties Inc. (Nov. 21, 2012, F.C., John A. O'Keefe J., File No. T-412-11) 225 A.C.W.S. (3d) 802. FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Power to suspend respondent by resolution alone not supported by inherent power Appellants appealed Federal Court's decision allowing judicial review. Appellant First Nation Council decided to suspend respondent without pay from his office as councillor. Council did so upon hearing of sexual assault charge against respondent, which remained pending. Council also received complaints that respondent sent explicit text messages and photographs to victim of sexual assault and to another woman. Council expressed decision in resolution. Respondent applied for judicial review. Federal Court found that council's resolution failed to include particulars of respondent's conduct it relied upon in making decision as required by Election Code, that decision to suspend respondent as councillor was not supported by any ground set out in Code and it expressed concern that council did not act in procedurally fair manner. Federal Court set aside resolution and restored respondent to office of councillor pending outcome of criminal trial. Appeal dismissed. Applicable standard of review was reasonableness. Council's power to suspend respondent by way of resolution alone was not supported by inherent power. Even if custom or inherent power existed, Code ousted it. Federal Court wrongfully narrowed meaning of words in s. 101.3.7 of Code. Potential breadth of wording "sufficiently serious to warrant cause in all the circumstances" could be given full effect by council. It was open to council to take view that, if established by evidence, respondent's conduct could fall within s. 101.3.7 of Code. However, council did not have power to suspend respondent from office by passing resolution alone. In doing so, it reached outcome that was outside range of acceptable and defensible. Decision to suspend respondent as councillor by way of resolution alone was unreasonable. Decision was quashed. Orr v. Fort McKay First Nation (Oct. 30, 2012, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-450-11) Decision at 209 A.C.W.S. (3d) 207 was affirmed. 225 A.C.W.S. (3d) 584. TAX COURT OF CANADA Taxation INCOME TAX Expenses incurred to perform pro bono services not deductible Appeal by taxpayer from reassessment by Minister. Taxpayer was lawyer who was member of bar in Ohio, New York, and Massachusetts. In 2009, taxpayer was employed by corporation. Taxpayer filed income tax return under Income Tax Act (Can.), for 2009 taxation year. Taxpayer reported that he earned no business income and he incurred business expenses of $10,520. Minister disallowed expenses in total amount of $8,242 for continuing legal education courses, travel, meals, office, supplies, and telephone. Appeal dismissed. There was no evidence on which it could be concluded that taxpayer had law practice. Positions which taxpayer held as director of corporation were offices. Taxpayer was limited to deductions permitted by s. 8 of Act. There was no provision in s. 8 that would allow taxpayer to deduct costs of his continuing education courses and related travel and meal expenses from his office and employment income. Expenses taxpayer incurred to perform pro bono services were not deductible. Jamieson v. R. (Feb. 18, 2013, T.C.C. [Informal Procedure], Valerie A. Miller J., File No. 20113994(IT)I) 225 A.C.W.S. (3d) 860. Worker was double-dipping with employer's consent Appeal by worker from determination by Minister that worker was not engaged in insurable employment. Worker was employed by corporation wholly owned by his brother. Minister determined that worker was not engaged in insurable employment on basis that he was related to his employer and terms and conditions of his employment were not substantially similar to arm's length terms. Appeal dismissed. In essence, worker was double-dipping with employer's consent, which was not indicative of arm's length dealing. Evidence was lacking in detail regarding amount of time worker spent on various duties, which was crucial here as some duties, such as deliv-

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