Law Times

PAGE 18 MARCH 10, 2014 • LAW TIMES www.lawtimesnews.com SUPREME COURT OF CANADA Police DISCIPLINE Officers not entitled to consult with counsel before completing their notes Police offi cers subject to Special Investigations Unit investigations sought assistance of counsel in completing their notes. Court of Appeal found that offi cers had right to basic legal advice about their rights and obligation before completing notes. Appeal by of- fi cers dismissed and cross-appeal by SIU allowed. Purpose and leg- islative history of SIU regulations compel conclusion that police offi cers are not entitled to consult with counsel at all before com- pleting their notes. Schaeff er v. Wood (Dec. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Kara- katsanis J., and Wagner J., File No. 34621) Decision at 98 W.C.B. (2d) 232 was reversed in part. 110 W.C.B. (2d) 786. Prostitution KEEPING COMMON BAWDY HOUSE Impact of prohibition dispropor- tionate to legislative objective Applicants challenging com- mon bawdy-house provision for violating principles of funda- mental justice. Applicants lead- ing evidence that bawdy-house prohibition precluded prostitutes taking eff ective safety measures by establishing "in call" service. Application judge holding provi- sion overbroad, arbitrary, grossly disproportionate, marginally advanced legislative objective of reducing social nuisance while drastically interfering with pros- titute's safety. Appeal from dec- laration common bawdy-house provision unconstitutional dis- missed. Impact of bawdy-house prohibition disproportionate to legislative objective. Appropriate remedy was to strike down provi- sion entirely but suspend declara- tion for 12 months. Bedford v. Canada (Attorney General) (Dec. 20, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Crom- well J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34788) Decision at 100 W.C.B. (2d) 704 was reversed in part. 110 W.C.B. (2d) 753. FEDERAL COURT OF APPEAL Civil Procedure COMMENCEMENT OF PROCEEDINGS Service by registered mail deemed effective 10 th day after receipt issued by post office On July 3, 2012, Canadian Food Inspection Agency served by registered mail notice of violation to applicant that he had made false or misleading statement to inspector. Notice was collected by employee of applicant on July 4, 2012. Ap- plicant fi led request for review of violation before Canadian Agricultural Review Tribunal on August 14, 2012, along with request for extension of time to fi le request for review of notice of violation. Tribunal denied request for review on ground that it had been fi led beyond permitted 30 days a er service of notice of violation. Applicant brought application for judicial review of tribunal's decision. Application dismissed. Agricul- ture and Agri-Food Adminis- trative Monetary Penalties Act (Can.) ("AAAMPA"), was enact- ed to achieve purpose of Health of Animals Act (Can.), un- der which applicant had been found in violation. Pursuant to s. 9(2) of Agriculture and Agri- Food Administrative Monetary Penalties Regulations (Can.), service by registered mail was deemed to be eff ective on tenth day a er date indicated in re- ceipt issued by post offi ce. us, eff ective service upon applicant was July 13, 2012. Request for review was made on August 14, 2012, which was one day outside 30-day period set out in AAAMPA. Tribunal was cor- rect that it did not have jurisdic- tion to deviate from timelines set out in AAAMPA. Clare v. Canada (Attorney Gen- eral) (Nov. 13, 2013, F.C.A., K. Sharlow J.A., Robert M. Main- ville J.A., and David G. Near J.A., File No. A-445-12) 235 A.C.W.S. (3d) 31. Partnership GENERAL Defendants could only require plaintiffs to sell in accordance with compliant offer Motion judge granted partial summary judgment in com- mercial dispute about exercise of shotgun buy-sell provision in partnership agreement. Defen- dants' buy-sell off er contained two alternatives and plaintiff s could accept either. Motion judge found that buy-sell off er did not perfectly comply with shotgun buy-sell provision, but it was valid and enforceable. Plaintiff s appealed. Appeal dismissed. In deciding whether defendants' shotgun buy-sell off er met strict compliance test, commercially reasonable expectations of so- phisticated parties in factual context must be considered. It was open to off erors to include alternative in buy-sell off er for plaintiff s' consideration even if alternative off er was not con- templated by partnership agree- ment. Inclusion of alternative in shotgun buy-sell off er that did not comply strictly with shotgun buy-sell provision in partnership agreement did not aff ect enforce- ability of buy-sell off er provided that compliant alternative was also included. Buy-sell off er was valid and enforceable since it contained compliant alternative, which plaintiff s were free to ac- cept, and mere inclusion of other alternative did not invalidate buy- sell agreement or render it unen- forceable. Court would not en- force shotgun buy-sell off er that was not strictly compliant with buy-sell provision, but it would enforce compliant buy-sell off er. at accorded with commercially reasonable expectation of parties. Defendants could only require plaintiff s to sell in accordance with compliant off er. Buy-sell off er was suffi ciently compliant with shotgun buy-sell provision in partnership agreement to meet strict compliance standard. Strict compliance was not perfect com- pliance. Motion judge did not err in fi xing applicable measure of damages as plaintiff s' full compli- ance with compliant buy-sell of- fer, as that refl ected commercially reasonable expectation of parties in context of triggered shotgun buy-sell off er under partnership agreement. Western Larch Ltd. v. Di Poce Management Ltd. (Nov. 29, 2013, Ont. C.A., E.E. Gillese J.A., M. Tulloch J.A., and P. Lauwers J.A., File No. CA C56453) Deci- sion at 224 A.C.W.S. (3d) 296 was affi rmed. 235 A.C.W.S. (3d) 248. Immigration INADMISSIBLE AND REMOVABLE CLASSES Medical officer could not be relieved of responsibility to assess mitigation plan Respondent applied for perma- nent residence in Canada pursu- ant to Immigration and Refugee Protection Act (Can.). When re- spondent and family underwent mandatory medical examina- tions, physician noted that re- spondent's son had development delays and moderate learning diffi culties and that he would re- quire services amounting to be- tween $98,500 to $126,500 over fi ve years. Respondent provided mitigation plan. Visa offi cer did not send plan to medical offi cer but assessed it herself and denied application. Respondent success- fully applied for judicial review. Judge concluded that offi cer was obligated, as matter of law, to refer respondent's response to medical offi cer for consideration. Minister appealed. Appeal dis- missed. Correct interpretation of statutory scheme was that medi- cal offi cer alone must determine medical condition of applicant, fi nancial burden of medical con- dition on publicly funded social services and whether mitiga- tion plan submitted by applicant would provide appropriate treat- ment for medical condition while reducing burden on publicly funded social services. Medical offi cer could not be relieved of responsibility to assess mitigation plan. Mitigation plan submitted by respondent had to be referred to medical offi cer for assessment and decision. Lawrence v. Canada (Minister of Citizenship and Immigration) (Nov. 4, 2013, F.C.A., Blais C.J., K. Sharlow J.A., and Stratas J.A., File No. A-1-13) Decision at 224 A.C.W.S. (3d) 767 was affi rmed. 235 A.C.W.S. (3d) 179. Social Welfare CANADA PENSION PLAN Failure to consider combined effect of injuries rendered board's decision unreasonable Applicant suff ered from injuries in two separate workplace ac- cidents that led her to claim dis- ability benefi ts. In fi rst accident, applicant suff ered physical inju- ries. In second accident, applicant suff ered syncope episodes. Pen- sion Appeals Board found that applicant was not disabled within meaning of s. 42(2) of Canada Pension Plan. Board found that physical injuries applicant suf- fered had been suffi ciently if not entirely resolved prior to mini- mum qualifying period and that syncope episodes did not prevent applicant from pursuing regular employment most of time. Appli- cant applied for judicial review. Application granted. Board's de- cision was unreasonable. 2010 medical report by applicant's family doctor referring to ap- plicant's ongoing physical pain contradicted board's fi nding that applicant's physical injuries were not referred to any reports a er February 2008. Board misap- prehended evidence concerning applicant's psychological or neu- rological symptoms. No opinion was provided that applicant was capable of doing sedentary work. Board's conclusion that applicant was not disabled was reached without considering combined eff ect of physical and psycho- logical or neurological symptoms and failure to consider combined eff ect of applicant's injuries ren- dered board's decision unreason- able. D. (H.) v. Canada (Minister of Hu- man Resources and Skills Devel- opment) (Nov. 12, 2013, F.C.A., Pierre Blais C.J., Eleanor R. Daw- son J.A., and James W. O'Reilly J.A. (ex offi cio), File No. A-57-13) 235 A.C.W.S. (3d) 262. FEDERAL COURT Administrative Law JUDICIAL REVIEW No authority to suspend appli- cant's participation in program for more than six weeks Application by prison inmate for judicial review of decision of Deputy Commissioner of Cor- rections. Commissioner denied applicant's third level grievance over his suspension from full- time employment at medium security institution where he was incarcerated. Applicant was at work on May 11, 2011 when an- other inmate was cleaning panel saw and fl oor with compressed air. Applicant told other inmate to stop because room was fi lling up with dust in air. Argument ensued, during which other in- mate headbutted applicant and he then punched him several times. Applicant fell on fl oor and he was unconscious. Secu- rity was called and applicant was taken to health care. Applicant was suspended for six months since he was involved in fi ght. Decision was made because ap- plicant refused to participate in program assignment and it was made even though applicant was found not to be aggressor. It was upheld as it went through grievance process. Application allowed. Commissioner claimed that authority for suspending applicant was contained in s. 104(1) of Corrections and Con- ditional Release Regulations (Can.) but he did not properly or reasonably exercise statutory authority to suspend applicant under that provision. Applicant did not refuse to participate in program by virtue of his actions on May 11 and it was unreason- able to reach that conclusion and to suspend him. ere was also no authority to suspend applicant's participation in pro- gram for more than six weeks. Decision was also unreasonable because applicant followed his correctional plan, he fulfi lled his shop steward duties at time of incident and he was victim and not aggressor. Given that applicant's record in workplace was excellent it was unreason- able that six-month suspension was ordered. Applicant was to be reinstated retroactively with 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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