Law Times

Page 14 August 18, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Employment Insurance APPEAL Applicant's decision to leave employment was personal and did not constitute just cause Applicant was journeyman electrician who resided in Lock- port, Manitoba. Applicant took employment in Weskwatim, Manitoba, from January to March 2012, and then left that employment. Applicant claimed he left employment due to fam- ily problems that resulted from him being out of town for work and only able to return home once per month. Employment insurance commission denied applicant's claim for employ- ment insurance benefits on basis that he voluntarily left his employment without just cause. Board of referees dismissed ap- plicant's appeal and umpire upheld board's decision. Appli- cant applied for judicial review. Application dismissed. Record showed that applicant did not have alternative offer of employ- ment when he left his employ- ment. Umpire did not err in concluding that applicant's de- cision to leave employment and return home was personal and that personal decision did not constitute just cause. Andrade v. Canada (Attorney General) (Apr. 7, 2014, F.C.A., Marc Noël J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., File No. A-56-13) 239 A.C.W.S. (3d) 388. Social Welfare CANADA PENSION PLAN Board did not ask whether appli- cant capable of pursuing sub- stantially gainful employment Applicant was injured in motor vehicle accident and suffered soft tissue injuries, depression and myofascial pain syndrome. Applicant took yoga and was employed on minimal part-time basis as yoga instructor well after time of minimum quali- fying period. Applicant's ap- plication for disability pension under Canada Pension Plan was denied. Board dismissed appeal finding applicant's dis- ability was not severe because she was capable of substantially gainful employment. Applicant sought judicial review. Appli- cation granted. Social Security Tribunal was directed to grant appeal and to make order grant- ing application for disability benefits. Decision was unrea- sonable. Board did not apply legal standards. Board latched onto Review Tribunal's reasons rather than conducting de novo analysis as required. Board did not ask whether applicant was capable of regularly pursuing substantially gainful employ- ment and did not assess whether applicant had severe and pro- longed disability. Board failed to examine applicant's condition at time of her minimum quali- fying period and afterward, and looked only at her more recent condition. Board did not assess whether $75 per week was sub- stantially gainful employment or if applicant could obtain other substantially gainful em- ployment. Case was exceptional in that delay was substantial, record showed prejudice would be caused by further delay, and there was sparse evidence in support of outcome reached by board. Benefits were meant to address serious condition. Re- cord showed applicant's disabil- ity was severe at time of mini- mum qualifying period. D'Errico v. Canada (Attorney General) (Apr. 10, 2014, F.C.A., Pierre Blais C.J., K. Sharlow J.A., and David Stratas J.A., File No. A-47-13) 239 A.C.W.S. (3d) 532. FEDERAL COURT Employment PUBLIC SERVICE Decision based on employer's intention rather than independent interpretation of agreement Employer extended appoint- ment of person who was acting as interim team leader, while appointment process was ongo- ing. Employee filed complaint with Public Service Staffing Tribunal alleging interim team leader was getting unfair ad- vantage of accumulating experi- ence. Complaint was settled by employer agreeing to fill team leader positions from certain pools of candidates. Employer subsequently filled one tempo- rary team leader position with someone from Canada Rev- enue Agency and filled two oth- ers internally. Employee filed grievance alleging employer breached settlement agreement. Employer dismissed grievance on basis that employee misun- derstood employer's intention and that corrective action could not be taken. Employee brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reason- ableness since interpretation of settlement agreement was tak- ing place within staffing con- text. Decision was unreason- able since decision was based on employer's intention rather than independent interpretation of settlement agreement. Addi- tionally, reasons for decision were inadequate with respect to decision-maker's jurisdiction to consider grievance. Court was not in position to determine whether this part of decision was within range of acceptable outcomes. Finally, decision did not provide any analysis or ra- tionale to support conclusion that corrective action could not be implemented. Taticek v. Canada (Border Ser- vices Agency) (Mar. 21, 2014, F.C., Cecily Y. Strickland J., File No. T-1934-12) 239 A.C.W.S. (3d) 382. Immigration REFUGEE STATUS Analysis and reasons so inad- equate that they could not be considered reasonable Refugee claimants were citizens of Croatia of Serbian ethnic- ity who alleged fear of persecu- tion by reason of their ethnic- ity. Claimants alleged that they had difficulty in obtaining work, suffered discrimination in workplace, and were verbally harassed. Board found that in- cessant and repeated acts of discrimination suffered by all members of family by reason of their nationality, particularly their son being beaten and dis- crimination suffered by female claimant in finding employ- ment, amounted to persecution. Board found that state protec- tion would not be forthcoming as claimants had made several attempts to obtain protection from police authorities and al- though police responded on ev- ery occasion, they consistently failed to provide adequate level of protection to family. Board found that documentary evi- dence confirmed that discrimi- nation against ethnic Serbs ex- isted throughout Croatia, and that claimants would not likely be able to find gainful employ- ment in all of Croatia. Board concluded that claimants were Convention Refugees and Min- ister applied for judicial review. Application granted. Board failed to properly consider evi- dence before it, and its analysis and reasons were so inadequate that they could not be consid- ered reasonable. Board's find- ing that incessant and repeated number of acts of discrimina- tion suffered by all members of family amounted to persecution did not accord with evidence before it. Board's finding that police consistently failed to pro- vide adequate level of protection was not grounded in evidence as board recognized that police responded on every occasion that they were called by claim- ants and there was no evidence that police failed to follow through on any investigations or failed to provide any services. Board's treatment of existence of internal f light alternative was deficient and not grounded in evidence before it. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable. Canada (Minister of Citizenship and Immigration) v. Viljanac (Mar. 21, 2014, F.C., Daniele Tremblay-Lamer J., File No. IMM-3807-13) 239 A.C.W.S. (3d) 458. ONTARIO CIVIL DECISIONS Civil Procedure SUMMARY JUDGMENT No evidence of economic loss or damage as result of sigma of haunted property Plaintiff purchased commer- cial property from defendant. Article appeared in newspaper in which director of defendant was quoted as saying that prop- erty was haunted. Plaintiff com- menced action on basis that there was latent defect in prop- erty that defendant knew about and concealed or failed to dis- close, namely, death or murder at property. Defendant success- fully brought motion for sum- mary judgment and claim was dismissed. Plaintiff appealed. Appeal dismissed. There was no 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. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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