Law Times

lAw Times • April 28, 2014 Page 13 www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples APPLICATION OF PROVINCIAL LAW Nothing federal about work of negotiations office Respondent was employed as member of First Nation's negotiations office until his employment was terminated. Respondent filed complaint under Canada Labour Code. Minister of Labour appointed adjudicator and referee pursu- ant to Code to determine claims made by respondent for unjust dismissal and recovery for unpaid overtime and vacation pay. Adjudicator determined he had jurisdiction over claims because employment relation- ship between parties was feder- ally and not provincially regu- lated. First Nation applied for judicial review of adjudicator's decision. Application granted. Adjudicator's finding that First Nation was employer was rea- sonable. Whether respondent's employment fell under federal or provincial jurisdiction rested on whether operations of nego- tiations office was properly char- acterized as federal work, under- taking or business within mean- ing of s. 2 of Code. Operations and habitual activities of negotia- tions office specifically had to be considered. Adjudicator erred in characterization of normal and habitual activities of negotia- tions office. Central purpose of negotiations office was negotia- tion of sophisticated commercial arrangements with other parties and adjudicator erred in focus- ing on fact that beneficiaries of activities of negotiations office were members of Indian band. Habitual activities of negotia- tions office were to negotiate with provincial Crown corpo- ration with respect to develop- ment of new hydro-electric projects situated in province. There was nothing federal about work of negotiations office. Fact employer was Indian Band was not relevant to functional test. Negotiations of Indian rights and status did not form exclusive or principal part of activities of negotiations office. Labour rela- tions was within provincial juris- diction. Fox Lake Cree Nation v. Anderson (Dec. 20, 2013, F.C., Russel W. Zinn J., File No. T-2141-12) 236 A.C.W.S. (3d) 739. Employment EMPLOYMENT RELATIONSHIP Refusing to admit evidence was breach of natural justice Respondent was helicopter maintenance engineer and he maintained helicopters owned by applicant. Respondent took position that he was self- employed when it suited him from compensation, income tax or spousal support per- spective. When relationship with applicant ended it suited respondent to say that he was employee of applicant and was entitled to damages for unjust dismissal pursuant to Canada Labour Code. Adjudicator determined that respondent was employee of applicant and he was awarded damages for unjust dismissal. Applicant applied for judicial review of adjudicator's decision. Application granted. Adjudicator erred in law in refusing to admit two affidavits filed by applicant into evidence. Affidavits were relevant evi- dence that went directly to issues raised by applicant. They spoke to parties' views of relationship and they spoke directly to how respondent viewed relationship with applicant prior to unjust dismissal complaint. Affidavits were clearly relevant to issue of whether respondent ought to be estopped from asserting that he was employee, as against appli- cant. Refusing to admit evidence was breach of natural justice. Once contested affidavits were admitted, adjudicator's ruling was unreasonable. Other than respondent describing himself as contract employee, there was no evidence that he ever con- sidered himself to be employee. Respondent led applicant to understand that relationship was not that of employer-employee, but was that of independent con- tractor. Applicant changed its position by not making deduc- tions it was legally required to make if relationship was one of employment. It was unreason- able for adjudicator to have found that respondent maintained he was employee. Adjudicator erred in rejecting applicant's defence that respondent was estopped from claiming he was employee of applicant. Only reasonable conclusion based on proper analysis of evidence that ought to have been admitted was that respondent always maintained he was self-employed as inde- pendent contractor. Rennie and VIH Helicopters Ltd., Re (Jan. 8, 2014, F.C., Russel W. Zinn J., File No. T-675-13) 236 A.C.W.S. (3d) 637. Immigration PERSON IN NEED OF PROTECTION Failure to answer determinative question made conclusion unsafe and unreasonable Female refugee claimant, aged ten, was citizen of Saint Lucia who arrived in Canada with her mother. Mother had made suc- cessful refugee claim based on gender-related persecution in form of physical, sexual and psy- chological violence perpetrated by her common law husband, who was also claimant's father, and failure of state to protect her from that violence. Father had uncontrollable desire for sex and violence after abusing alcohol and drugs. Board deter- mined that claimant was not Convention Refugee or person in need of protection although she had witnessed some of vio- lence of father toward mother as she had not personally been subjected to violence or threats and had good relationship with father. Application granted; mat- ter returned for reconsidera- tion. If objective evidence dem- onstrates that particular group is at risk, Refugee Protection Division ("RPD") is required to determine whether claimant fits that profile in assessing claim under s. 97(1) of Immigration and Refugee Protection Act (Can.), and failure to conduct such analysis is reviewable error. Here, there was extensive evi- dence regarding risk of violence faced by women and children in Saint Lucia, and of inadequacy of state protection for victims of domestic violence, and this very evidence was accepted by RPD in granting mother's refu- gee claim. Determinative issue was whether there was serious possibility that such harm would come to pass based on claim- ant's profile. In light of horrific violence perpetrated by father against mother, and inability of state to protect women in Saint Lucia against such abuse, failure of RPD to answer this determi- native question made its ultimate conclusion unsafe and unreason- able. Claimant had already been subjected to abuse by father as she was forced to witness father's violence to mother. If claimant were returned to Saint Lucia, there was real prospect that claimant may have to witness further violence by her father against her mother, if mother returned with her, and claimant could also be personally victim- ized by her father. Modeste v. Canada (Minister of Citizenship and Immigration) (Dec. 18, 2013, F.C., James Rus- sell J., File No. IMM-9659-12) 236 A.C.W.S. (3d) 710. ONTARIO CIVIL DECISIONS Administrative Law JUDICIAL REVIEW Crown prerogative could not be used to avoid declaration that contract breached Parties entered into agree- ment that specified that Crown would appoint representative of First Nations to Board of Directors of Ontario Lottery and Gaming Commission (OLG). Appointment was to be made pursuant to procedures of prov- ince for making appointments. No appointment was made. Ontario First Nations sought arbitration. Crown and OLG brought motion to strike out claim asserting that as result of continuing operation of Crown prerogative Crown was not required to make appointment. Arbitration Panel found Crown prerogative did not prevent it from adjudicating whether province breached agreement by failing to appoint represen- tative to Board of Directors of OLG. Crown and OLG appealed decision. Claim for declaration was justiciable. Crown preroga- tive could not be used to avoid declaration that contract was breached. Agreement created legal relationship that was inde- pendent of Crown prerogative and subject to declaration that it was breached. Agreement creat- ed legitimate expectation of pro- cess, not substantive decision. Exercise of prerogative held not promise of procedural fairness 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. 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