Law Times

Page 16 October 21, 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 Trial CHARGE TO JURY Trial judge may not express opinion that will influence jury on verdict Accused's conviction for second degree murder set aside and new trial ordered. Trial judge may express opinion on question of fact when warranted so long as circumstances permit but judge may not express opinion that will influence jury on verdict. Trial judge committed error by failing to simply outline defence theory, instead attempting to demonstrate its implausibility and by failing to repeat caution regarding own opinion. Summary of defence theory should be presented objectively. R. c. Mailhot (Mar. 28, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Moldaver J., and Wagner J., File No. 34881) 108 W.C.B. (2d) 407. FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Unreasonable for committee to call new elections for positions of councillors This was appeal of application judge's decision. Various appeals challenging result of 2012 elections were submitted to First Nation election appeal committee. Committee prepared written report of its findings. Committee concluded that election process overall appeared to have been fairly conducted. Nevertheless, it recommended that elections be set aside and new elections be held. First Nation brought application for judicial review that it later discontinued. Respondent, who had unsuccessfully run against appellant in election for office of chief, initiated own judicial review application. Application judge treated application as primarily seeking to enforce decision of committee calling for new elections. Application judge declared that election appeal committee made final and binding decision that required new elections for offices of chief and all councillors. Appeal allowed in part. Election appeal committee had power to compel new elections under article 17 of Long Plain First Nation Election Act. Applying contextual and purposive approach to matter, when recommendation to hold new election was made by com- mittee, recommendation should be treated as decision that was irrevocable, binding and final. When committee issued report with recommendation that new elections be held, it could not have intended that its conclusion would simply be advisory without any effect. Allegations of candidate misconduct affecting result of election primarily concerned elected chief. There was no evidence of candidate misconduct on part of elected councillors. Committee should not have called for new elections for positions of councillors in light of evidence before it. Taking into account all circumstances and applicable legal principles, it was unreasonable for committee to call new elections for elected positions of councillors. Committee did not breach rules of procedural fairness such as to vitiate its decision concerning election for position of chief. Meeches v. Meeches (Jul. 5, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J.A., and D.G. Near J.A., File No. A-102-13, A-10113) Decision at 226 A.C.W.S. (3d) 615 was reversed in part. 230 A.C.W.S. (3d) 3. FEDERAL COURT Administrative Law JUDICIAL REVIEW Accused did not abandon Canada and circumstances had changed Application by accused for judicial review of decision of Minister of Public Safety made under International Transfer of Offenders Act (Can.). Minister did not consent to accused's request to be transferred from American prison to Canada. Minister concluded that accused abandoned Canada and he was involved in serious criminality and in organized crime. Accused had criminal record in Canada that dated back to 1971. In 1985 he was sentenced in Canada to over four years' imprisonment for possession of narcotics for purpose of trafficking. While on day parole accused absconded to United States where he assumed false name and identity. While in United States accused worked and he established common law relationship with woman in Nevada which ended after several years. He was apprehended in United States in sting operation that involved substantial amount of cocaine. Accused was sentenced by American court to 30 years' imprisonment, to be followed by five-year period of supervised release. He served 15 years of this term in American penitentiary. This case dealt with his sixth request for trans- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. fer to Canada to serve remainder of his term here. If he was returned to Canada he would be eligible to apply for parole. Application allowed. Standard of review was reasonableness. Minister held opinion that once party abandoned Canada they could not change their mind. He ignored evidence that showed that accused did not abandon Canada and that his circumstances changed. Decision in respect of abandonment was not reasonable. Minister's decision regarding serious crime was unreasonable. Accused quit his past behaviour, he was remorseful and he wanted to pursue positive lifestyle. Minister failed to consider these changes and he also ignored the report of Director of International Transfer Unit of Corrections Canada. That report concluded that accused did not pose threat to Canadian security; he lived in Canada for certain periods of time to maintain contact with his children; he had social and familial ties in Canada; and he did not have ties to terrorism or to criminal organization. Minister's entire decision was unreasonable and it had to be returned for full and proper assessment of all relevant factors and for decision that was clear, transparent and intelligible. This was to be done forthwith. Carrera v. Canada (Minister of Public Safety) (Jul. 18, 2013, F.C., Roger T. Hughes J., File No. T-2198-12) 108 W.C.B. (2d) 406. NATURAL JUSTICE Onus on applicant to place case before officer in full in writing Applicant received negative preremoval risk assessment. Officer did not question applicant's credibility and determined oral hearing was not required. Officer found state put into place measures to combat issues of violence and racism against Roma. Officer noted applicant had obligation to seek state protection. Officer noted applicant provided little evidence or information that applicant was targeted due to wife's public profile. Application for judicial review was dismissed. Onus was on applicant to place case before officer in full in writing. Nothing showed applicant could not have done so by simply requesting extension of time. It was applicant's choice not to make written submissions and to request oral hearing. Applicant could not raise constitutional issues on facts of case. There was insufficient evidence that applicant could not have provided all of evidence in writing by requesting extension of time or asking officer not to release information of concern to applicant's wife. Argument that s. 113(b) of Immigration and www.lawtimesnews.com Refugee Protection Act (Can.), and s. 167 of Immigration and Refugee Protection Regulations (Can.), were inconsistent with s. 7 of Canadian Charter of Rights and Freedoms did not arise on facts of case. M. (G.) v. Canada (Minister of Citizenship and Immigration) (Jun. 26, 2013, F.C., James Russell J., File No. IMM-7850-12) 230 A.C.W.S. (3d) 226. Employment WRONGFUL DISMISSAL Punitive damages of $100,000 reasonable in face of bad faith conduct This was application for judicial review of adjudicator's decision. Prior to dismissal, respondent served applicant for more than 30 years. At time of termination he was director of applicant's health department. Respondent and two others sent letter to applicant's executive director, criticizing his management style. Executive director then began to target respondent with unsupported accusations of fraud and mismanagement. Respondent's health deteriorated and he was compelled to take medical leave. Executive director continued his vicious campaign of intimidation. Chief of applicant terminated executive director and executive director then mounted political campaign against chief. Executive director made fabricated and malicious accusations regarding respondent in memorandum to applicant's council. Accusations were widely distributed within community and region. They destroyed respondent's reputation and professional standing. Applicant terminated respondent without notice or compensation. Adjudicator determined that respondent had been unjustly dismissed. Respondent was awarded compensation for employmentrelated losses. Respondent was awarded aggravated damages of $85,000 and punitive damages of $100,000. Applicant challenged aggravated and punitive damages awarded to respondent. Application dismissed. Standard of review was reasonableness. Adjudicator properly understood principles relating to aggravated damages. Case law supported adjudicator's decision to award aggravated damages to compensate respondent for consequential damage to his prospect of future employment, to his mental and physical health and well-being, to his integrity and dignity and to his professional and personal reputation. Quantum awarded was reasonable given extreme, heavy handed conduct that had severe impact on respondent. Aggravated damages award was reasonable. Adjudicator's factual findings and overview of relevant case law on punitive damages provided firm basis for decision to award punitive damages of $100,000. Given numerous factual findings made regarding reprehensible and bad faith conduct of applicant, $100,000 award of punitive damages was reasonable. Quantum was entirely justifiable and was within range of acceptable outcomes. Joseph v. Tl'azt'en First Nation (Jul. 9, 2013, F.C., Danièle TremblayLamer J., File No. T-1227-12) 230 A.C.W.S. (3d) 142. Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Document signed by respondent did not constitute renunciation of right to challenge release Respondent was in Canadian Forces. Respondent was diagnosed as HIV positive. Respondent was informed by medical officer that respondent would have to be released from Canadian Forces because respondent had incurable disease and colleagues would be at risk of contamination. Respondent signed document confirming respondent's agreement with board's final recommendation to release applicant and stating respondent had nothing to add. Respondent was released from Canadian Forces on medical grounds. Respondent did not submit grievance against release. Respondent consulted infectious disease specialist who informed applicant that applicant did not present contamination risk for colleagues. Respondent filed complaint that respondent was subject of discrimination. Commission decided to deal with complaint. Application for judicial review was dismissed. Decision to deal with complaint was reasonable. Respondent's explanation for delay of 31 months between release and filing complaint was accepted. Document signed by respondent did not constitute renunciation of right to challenge release. Canada (Procureur général) c. Galipeau (Nov. 30, 2012, F.C., André F.J. Scott J., File No. T-78012) 230 A.C.W.S. (3d) 127. Immigration INADMISSIBLE AND REMOVABLE CLASSES Panel erred in finding men shared life together through computer Two men met on web site. Respondent visited other man in China and two lived together in hotel during respondent's stay. Respondent visited China on three other occasions. Respondent, aged 59, was previously married and had children. Other

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