Law Times

Page 14 SePtember 8, 2014 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Administrative Law DUTY TO ACT FAIRLY Warden's failure to disclose information considered in making decision breach of procedural fairness Individual, federal inmate serv- ing life sentence, transferred from medium security facility to maximum security facility on emergency, involuntary ba- sis after individual implicated in stabbing incident at medium security facility. Warden, re- lying on security intelligence office report stating that indi- vidual implicated in stabbing, reassessed individual's security classification to order transfer. Individual received assessment indicating that primary reason for emergency transfer was se- curity intelligence report and anonymous information re- ceived from "three separate and distinct sources", but not con- taining detailed information regarding identity of sources, what they said or why their in- formation was considered reli- able. Individual received notice confirming his case manage- ment team had recommended his classification be overridden. Individual's application for ha- beas corpus on grounds that transfer decision unreasonable and procedurally unfair and therefore unlawful granted and decision upheld by British Co- lumbia Court of Appeal. War- den's further appeal dismissed. Inmate deprived of liberty as result of unlawful decision of federal board, commission, or tribunal can apply to provincial superior court for relief in form of habeas corpus. Decision not lawful if detention not lawful, if decision-maker lacked jurisdic- tion, or if breach of procedural fairness. Reasonableness should be regarded as one element of lawfulness. Where deprivation of liberty results from federal administrative decision, inmate can either challenge reasonable- ness of decision by applying for judicial review under Federal Court Act or have decision re- viewed for reasonableness by means of application for ha- beas corpus. Reasonableness is legitimate ground upon which to question legality of depriva- tion of liberty on application for habeas corpus. Transfer decision that does not fall within range of possible, acceptable outcomes defensible in respect of facts and law or that lacks " justification, transparency and intelligibility" will be unlawful. To be lawful, reasons for and record of deci- sion must "in fact or in principle support conclusion reached". Inmate's application for habeas corpus granted. Warden's failure to disclose information consid- ered in making transfer decision constituted breach of procedur- al fairness, rendering transfer decision unlawful. Khela v. Mission Institution (Mar. 27, 2014, S.C.C., McLach- lin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Mol- daver J., Karakatsanis J., and Wagner J., File No. 34609) 239 A.C.W.S. (3d) 983. Civil Procedure OFFER TO SETTLE Mere fact of signing mediation agreement with confidentiality clause not automatically displacing privilege Bombardier commenced action against Dow Chemical claiming that gas tanks supplied by Dow for personal watercraft were unfit for intended use. Parties entered into standard mediation agree- ment containing confidential- ity clause. Bombardier accepted Dow's settlement offer, but par- ties disputed terms of settlement. Dow refused to send settlement so Bombardier filed motion for homologation of transaction in Superior Court. Dow's motion to strike out certain allegations on ground they referred to me- diation process dismissed. Com- munication that leads to settle- ment will cease to be privileged if disclosing it is necessary to prove existence or scope of settlement. Both common law privilege and exception form part of Quebec civil law but parties can tailor confidentiality requirements by contract. To determine whether absolute confidentiality clause in mediation agreement displaces common law exception to settle- ment privilege, it must be asked whether confidentiality clause actually conf licts with settlement privilege or with recognized ex- ceptions to that privilege. Mere fact of signing mediation agree- ment with confidentiality clause not automatically displacing privilege and exceptions. Agree- ment that could have effect of preventing application of recog- nized exception must be clear. Mediation agreement indicated, on its face, common intention to be bound by confidentiality, but nature of contract, circum- stances in which it was formed and contract as whole revealed that parties did not intend to dis- regard usual rule that settlement privilege can be dispensed with in order to prove terms of settle- ment. Mediation agreement was signed on eve of mediation with apparent purpose of settling on- going dispute. It was standard form provided by mediator, and neither party amended provi- sions relating to confidentiality. No evidence that parties thought they were deviating from usual settlement privilege. Would be unreasonable, absent express provision to contrary, to assume that parties who have agreed to mediation for purpose of reach- ing settlement would renounce right to prove terms of settle- ment. In course of motion for homologation, parties may pro- duce evidence to prove terms of settlement. Bombardier inc. c. Union Car- bide Canada inc. (May. 8, 2014, S.C.C., McLachlin C.J.C., LeBel J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35008) 239 A.C.W.S. (3d) 941. Constitutional Law AMENDMENT OF CONSTITUTION Changes to composition of Supreme Court require unanimous consent of Parliament Supreme Court of Canada. Eli- gibility. Current judge of Fed- eral Court of Appeal and former member of Quebec bar for at least ten years not eligible for ap- pointment under s. 6 of Supreme Court Act (Can.), as person who may be appointed "from among the advocates of that Province". At time of appointment, appoin- tee must be current member of Quebec bar with at least ten years standing. Parliament can- not enact legislation purporting to declare a binding interpreta- tion of s. 6, thereby permitting appointment of former member of Quebec bar to one of Quebec positions on Supreme Court of Canada. Eligibility require- ments set out in s. 6 relate to composition of Supreme Court and are, therefore, constitution- ally protected. Changes to com- position of Supreme Court can only be made under procedure provided for in Constitution Act, 1982, and require unani- mous consent of Parliament and provincial legislatures. Reference re Supreme Court Act, R.S.C. 1985 (Canada) (Mar. 21, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35586) 239 A.C.W.S. (3d) 923. Evidence PRIVILEGE CSIS human sources not protected by class privilege Certificate naming individual inadmissible to Canada on grounds of national security referred to Federal Court pursu- ant to Immigration and Refugee Protection Act (Can.). Security certificate upheld as reasonable. Individual's appeal dismissed but Supreme Court of Canada declared security certificate regime contrary to s. 7 of Ca- nadian Charter of Rights and Freedoms. Security certificate regime significantly modified, importing special advocate system for security certificate proceedings. Judge ordered So- licitor General and Minister of Citizenship and Immigration to produce "all information and intelligence related to" in- dividual, but original tapes and notes already destroyed. Judge rejected special advocates' re- quest for access to CSIS em- ployee and human source files, extending police informer com- mon law privilege to covert hu- man intelligence sources. Judge ordered Ministers to completely disclose human source file but declined to exclude all evidence from human source. Judge sub- sequently rejected motion by special advocates to identify, interview and cross-examine covert human intelligence sources on basis they were pro- tected by common law class privilege. Judge upheld security certificate's reasonableness, confirmed security certificate regime's constitutionality and rejected motion for either stay of proceedings or exclusion of evidence because of alleged abuse of process. On appeal, Federal Court of Appeal up- held constitutionality of regime but found that identity of CSIS human sources not protected by privilege and excluded from evidence summaries of inter- cepted conversations to which H. not priv y. Ministers' appeal allowed in part and cross-ap- peal dismissed. CSIS human sources not protected by class privilege. Police informer priv- ilege does not attach to CSIS human sources and new privi- lege for CSIS human sources should not be created by courts. Discretion of designated judge to allow special advocates to interview and cross-examine human sources in closed hear- ing, however, should be exer- cised as last resort. Generalized practice of calling CSIS human sources may have chilling effect on potential sources and hin- der CSIS's ability to recruit new sources. No need in this case to authorize exceptional measure of interviewing and cross-ex- amining human sources. Harkat, Re (May. 14, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Crom- well J., Moldaver J., Karakat- sanis J., and Wagner J., File No. 34884) Decision at 214 A.C.W.S. (3d) 237 was reversed in part. 239 A.C.W.S. (3d) 987. FEDERAL COURT OF APPEAL Administrative Law DUTY TO ACT FAIRLY Board should have held hearing to resolve conflict Applicant, bus driver, suspended for failing to respect minimum rest periods. Union grieved but subsequently settled. Appli- cant terminated for continued failure to respect minimum rest periods and not correctly recording work hours. Union filed termination grievance but refused to proceed to arbi- tration. Union by-laws entitle members to refuse to take griev- ance to arbitration based on recommendation from union's executive board. Applicant ar- gued he was not informed in timely manner of board meet- ing during which termination grievance discussed nor was he given opportunity to present case before members. Mem- bers accepted recommendation that termination grievance not be taken to arbitration. Ap- plicant complained to Canada Industrial Relations Board, al- leging union breached duty of representation. Board declined to hold hearing but appointed industrial relations officer to in- vestigate. Board concluded that applicant's refusal to participate in meetings precluded board from finding union acted in ar- bitrary, discriminatory or bad faith manner. Board dismissed application for reconsideration, finding it was entitled to rule on matter without hearing and was not obliged to consider record- ing of members' meeting since applicant refused to identify source. Applications for judicial review allowed. Employee gen- erally does not have right to take grievance to arbitration without union's consent so union cannot act in arbitrary, discriminatory or bad faith manner towards employee exercising collective agreement rights. Board failed to consider whether union con- ducted proper investigation and gathered sufficient infor- mation. Employee's failure to participate was relevant factor but could not, itself, preclude board from finding that union breached duty of fair and equi- table representation, particu- larly in context of termination grievance. Duty remained on union to fulfil duty of represen- tation, regardless of employee's conduct. Board required to ex- amine union's conduct to de- termine whether investigation and decision were fair and eq- uitable. 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