Law Times

Page 13 Law Times • September 23, 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 Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Historic trade-off of compensation in lieu of right to sue Ship capsized while returning from fishing expedition. Dependants (Estates) of brothers killed in capsize received Workplace Health, Safety and Compensation Act (Nfld. & Lab.) ("WHSCA"), compensation but commenced proceedings under federal Maritime Liability Act (Can.) ("MLA"), against University Marine, Marine Services International and employee, and against Attorney General of Canada, alleging negligence in design and construction of ship and inspection. Workplace Health, Safety and Compensation Commission held action prohibited by statutory bar in s. 44 of WHSCA, but Supreme Court, Trial Division, overturned decision. Majority of Court of Appeal upheld trial judgment. Appeal to Supreme Court of Canada allowed. WHSCA provides no-fault compensation to workers and dependants arising from workplace accidents, replacing tort action for negligence with compensation. Section 44 of WHSCA provides statutory bar; right to compensation instead of rights of action to which worker or dependants entitled due to workplace injury. Workers' compensation schemes generally fall within provincial jurisdiction over property and civil rights. Historic trade-off of compensation in lieu of right to sue at heart of workers' compensation schemes, distinct from and do not interact with tort regimes. Statutory bar applied. No direct employment relationship between brothers and Marine Services but any employer contributing to scheme benefits from statutory bar. No dispute brothers injured in course of employment, that Marine Services employer under WHSCA. Commission's finding that injury that led to brothers' death occurred in conduct of operations usual in industry carried on by Marine Services reasonable. Constitutional issue was whether statutory bar in provincial workers' compensation scheme could preclude federal maritime negligence action. Interjurisdictional immunity protects core of exclusive classes of subject created by Constitution Act, 1867 but has limited application. Prior case law favoured application but while maritime negligence law at core of federal power over navigation and shipping and s. 44 of WHSCA trenches on that core, level of intrusion insufficient to trigger interjurisdictional immunity. Federal paramountcy applies where inconsistency between valid federal and provincial legislative enactments but not where inconsistency between common law and legislative enactment. Under proper interpretation of MLA, federal paramountcy does not apply. Section 6(2) of MLA, which provides that if person dies by fault or neglect of another under circumstances that would have entitled person, if not deceased, to recover damages, dependants of deceased may maintain action for loss resulting from death against person from whom deceased person would have been entitled to recover, accommodates s. 44 of WHSCA. Estates received compensation and became subject to statutory bar because brothers succumbed to injury for which they would have received compensation had they lived. No conflict between two statutes distinct in purpose and nature. Newfoundland (Workplace These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. Health, Safety & Compensation Commission) v. Ryan Estate (Aug. 2, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34429) Decision at 214 A.C.W.S. (3d) 426 was reversed.  229 A.C.W.S. (3d) 404. FEDERAL COURT Crown ARMED FORCES Certain documents suggested veteran could have been exposed to Agent Orange Application by veteran for judicial review of decision of Veteran's Review and Appeal Board refusing to reconsider prior decision upholding denial of entitlement to pension. Veteran had served in Canadian Armed Forces from December 30, 1954 to January 1, 1975. Veteran had spent much of this time working at base at which Agent Orange had been sprayed in 1966 and 1967. Veteran was diagnosed with prostate cancer in 1994 at age of 62. In 2005, veteran unsuccessfully applied to Department of Veterans Affairs for disability benefits. Department cited lack of evidence establishing veteran's exposure to Agent Orange. Veteran unsuccessfully appealed to board and unsuccessfully applied for reconsideration. Veteran unsuccessfully applied for another reconsideration on basis of new evidence from witnesses indicating veteran had been exposed to Agent Orange. Application granted; matter remitted for redetermination. Board had erred in finding proposed new evidence was not credible because of apparent contradiction with report claiming no possibility of direct exposure to Agent Orange. Report itself had not been in record before board. Other docu- ments before board did not refer to report's claim of no possibility of direct exposure to Agent Orange. Certain documents actually suggested veteran could have been directly exposed to Agent Orange. Proposed new evidence was relevant and, if believed, could reasonably have been expected to have affected result. McAllister v. Canada (Attorney General) (Jun. 19, 2013, F.C., Cecily Y. Strickland J., File No. T-1421-12) 229 A.C.W.S. (3d) 430. Immigration IMMIGRATION APPEAL BOARD Fact that decision-maker preoccupied with time not prejudicial to foreign national Application by foreign national for judicial review of decision of Immigration Appeal Division ("IAD") of Immigration and Refugee Board refusing appeal from removal order. Foreign national, aged 50, was citizen of Jamaica who had first come to Canada in 1983. Foreign national accumulated significant criminal record from about 1986 to 1995. Foreign national was convicted of uttering forged document after deliberately using wrong date of birth on driver's licence application in 2007. Removal order was issued against foreign national on basis of serious criminality. Foreign national unsuccessfully appealed to IAD. Appeal had been heard by videoconference. Decision-maker had repeatedly mentioned need to finish hearing on time. Application dismissed. Fact that decision-maker had been preoccupied with time was not shown to have been prejudicial to foreign national. Foreign national provided no evidence or specifics about anything he was not able to present at hearing. Foreign national and his counsel would have known immediately if they had not been allowed to present case adequately in time available. Foreign national had not raised issue before decisionmaker and so could not do so now. There was no evidence of failure of communication during videoconference that had led to some material omission or mistake in decision. McCurvie v. Canada (Minister of Citizenship and Immigration) (Jun. 18, 2013, F.C., James Russell J., File No. IMM-8546-12) 229 A.C.W.S. (3d) 529. REFUGEE STATUS Board's credibility finding relied heavily on trivial inconsistencies Applicant was denied refugee status. Board indicated determinative issues were credibility and risk of persecution. Board found claim had no political basis but was in disagreement with authorities. Board found law was of general application and applied to entire population. Application for judicial review was allowed. Board's credibility finding relied heavily on trivial inconsistencies and was outside range of acceptable outcomes. Board's decision that summons was fraudulent was unreasonable given that it was justified with reference to negative inferences drawn against applicant's credibility. Persecution finding was not alternative determination that could stand while credibility decision fell. Zhou v. Canada (Minister of Citizenship and Immigration) (Jun. 7, 2013, F.C., John A. O'Keefe J., File No. IMM-8329-12) 229 A.C.W.S. (3d) 532. SELECTION AND ADMISSION Unreasonable for officer not to consider third document in making decision Applicant was denied permanent residence as foreign skilled worker. Officer determined REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ENCHANCE YOUR LISTING TODAY! 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