Law Times

Page 13 Law Times • October 28, 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 OF APPEAL Constitutional Law CHARTER OF RIGHTS Applicant denied benefits because of unfortunate confluence of events Applicant was diagnosed with fibromyalgia triggered by two car accidents and childbirth. Doctor was of opinion applicant was unable to work. Applicant applied for disability benefits under Canada Pension Plan. Board found applicant did not qualify for disability benefits. Applicant was involved in third car accident. Applicant's condition worsened appreciably. Board found there was no infringement of s. 15 of Canadian Charter of Rights and Freedoms. Application for judicial review was dismissed. There was no infringement of s. 15 of Charter. Provisions of Plan applied to applicant as written. Applicant did not qualify for disability benefits. Applicant did not meet requirement of contributing under Plan in four of last six years. Child rearing dropout ("CRDO") provisions did not change fact applicant was not in compliance with four of six rules. Applicant's required contribution could not be prorated because applicant did not meet conditions contained in s. 19 of Plan. Plan did not single out women in invidious way. Plan did not have discriminatory purpose, policy or effect. Detrimental effect caused on applicant was consequence of interaction of complicated rules within complicated scheme that was not general social welfare scheme available to all in every circumstance. Month in which child was born was not enumerated or analogous ground under s. 15 and was not personal characteristic on which applicant was denied benefit under Plan. Lines drawn were generally appropriate. Applicant was denied benefits because of unfortunate confluence of events and not discriminatory legislative standards. Ameliorative nature of CRDO provisions and proration provision lead to conclusion that applicant did not establish presence of discrimination. Miceli-Riggins v. Canada (Attorney General) (Jun. 14, 2013, F.C.A., John M. Evans J.A., David Stratas J.A., and Wyman W. Webb J.A., File No. A-52-12) 230 A.C.W.S. (3d) 605. FEDERAL COURT Aboriginal Peoples SELF GOVERNMENT Allegations of corrupt practices to be reconsidered Application by band member for judicial review of Appeal Board's decision. Applicant applied to Appeal Board after respondent band's election, alleging corrupt practices took place and challenging the definition of "elector" in Alexander Tribal Government Customary Election Regulations as violating s. 15 of Canadian Charter of Rights and Freedoms. Application claimed respondent councillors provided financial help to families in exchange for votes. Appeal Board rejected appeal, finding there was no evidence of corruption and it did not have jurisdiction to hear constitutional question. Applicant argued chair acted unfairly in communicating privately with respondents and erred in its interpretation of Regulations by finding it did not have jurisdiction to decide constitutionality of elector definition. Ap- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. plication allowed in part. Chair phoned respondents to inform them about allegations of witness who claimed he was paid $1,300 for votes. Respondents denied allegations with some explanation and told chair they would not appear at hearing. Chair reported conversation to applicant and other panel members. Communicating privately with two important witnesses against whom serious allegations were made was breach of procedural fairness. Chair and respondents discussed substance of allegations and reporting conversation to applicant, who had no opportunity to cross-examine respondents, did not remedy breach. Decision invalid as result on this fundamental breach of procedural fairness, and allegations of corrupt practices to be reconsidered. On second issue, appeal board rightly concluded it did not have jurisdiction. Purpose of appeal board was to inquire into legitimacy of election process. Section 17 of Regulations specifically stated questions of inclusion or exclusion of persons from voter's list was matter for Electoral Officer, so drafter clearly intended to confer upon Electoral Officer jurisdiction to interpret definition of elector, to exclusion of appeal board, whose jurisdiction conferred by s. 29 did not refer to electors or lists. Yellowdirt v. Comité d'appeal en Matiere (Jan. 11, 2013, F.C., Simon Noël J., File No. T-179111) 230 A.C.W.S. (3d) 322. Immigration OFFENCES Terms and conditions disproportionate to assessment of danger Application to vary terms and conditions of release, specifically that Global Positioning System ("GPS") ankle bracelet be removed, that notice require- ment to travel outside Ottawa be changed and that applicant be granted right to access mobile phone and laptop computer. Applicant was released from detention with conditions in 2006. Court's objective in determining appropriate terms and conditions of release was to neutralize danger posed by applicant. As time passed and as result of threat assessments made by Canadian Security Intelligence Service ("CSIS"), terms and conditions of release were adapted to evolving circumstances surrounding applicant. Most recent threat assessment was done by CSIS in September 2009, and most recent public hearing dealing with terms and conditions of release resulted in October 7, 2009 decision. Court decided to maintain these terms and conditions as it found that they were essential to neutralize danger as it was then assessed. In decision on reasonableness of certificate dated December 9, 2010, this court found that compared to 1995 when he posed high risk, this risk was "much lower" as of December 9, 2010. For purposes of his motion seeking order reviewing terms and conditions of release pursuant to s. 82(4) of Immigration and Refugee Protection Act (Can.), applicant filed affidavits signed by him and others in support of motion. Applicant contended that he had complied scrupulously with terms and conditions, that they were invasive and seriously affected his health and that they impacted negatively on his quality of life and his family. Medical evidence indicated that applicant presented significant depressive, post-traumatic stress and anxiety symptoms. New terms and conditions established. Terms and conditions were disproportionate to assessment of danger to security of Canada which was now at lower end of spectrum. Court concluded that time for GPS had passed, and mobile phone, having only capacity of receiving and making calls and text messaging could be used by applicant as long as applicant agreed to Canada Border Services Agency ("CBSA") supervision by having telephone number and access to information detained by service provider. Applicant may have access to desktop computer with internet capacity at home and every month, applicant to make computer available so that it can be accessed by CBSA for inspection. Applicant not to use his computer to access jihad sites or any other sites of this nature and not to communicate with anyone who may have direct or indirect connections with jihad or terrorism. Harkat v. Canada (Minister of Citizenship and Immigration) (Jul. 17, 2013, F.C., Simon Noël J., File No. DES-5-08) 230 A.C.W.S. (3d) 516. ONTARIO CIVIL DECISIONS Appeal LEAVE TO APPEAL Business deal entered into by parties could not now be rewritten Application for leave to appeal two arbitration decisions and secure relief from forfeiture of lease of premises where both parties operated dental practices. Parties had shared leased space for decade under Agreement to Cost Share, which ended on May 20, 2013. Last few years had been unhappy and parties were now fighting over lease, which expired in August 2013. ACS provided that, if lease was renewed, agreement would renew too and parties certainly no longer wanted to work together, but each wanted to stay at premises. Tenant REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ENCHANCE YOUR LISTING TODAY! Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. With more than 218,000 page views and 51,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com AVAILABLE ONLINE AND IN PRINT Untitled-3 1 www.canadianlawlist.com www.lawtimesnews.com 13-07-12 10:17 AM

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