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Page 14 September 22, 2014 • Law Times www.lawtimesnews.com employer discriminated against her on basis of family status. Tri- bunal found that employer had discriminated against employee within meaning of ss. 7 and 10 of Canadian Human Rights Act, on ground of family status by refusing to accommodate her childcare needs. Employer was ordered to pay $20,000 in special compensation to employee for its reckless conduct. Employer ap- plied for judicial review. Judge found that tribunal's decision was reasonable and applica- tion was dismissed. Employer appealed. Appeal dismissed. Employee was mother of young children at time she was called to Vancouver, children were under her care and supervision and she had legal responsibility to ensure that they would be cared for and supervised while she was away at work. Employer failed to pro- vide any useful information to employee about her work assign- ment in Vancouver that would have allowed her to assess her childcare needs. Requesting that employee move from Alberta to British Columbia to meet work shortage was work-related situ- ation that interfered in manner that was more than trivial with fulfilment of employee's child- care obligations. Employee met burden of establishing prima facie case of discrimination. Em- ployer had not established that impugned action was bona fide occupational requirement. Em- ployer was not sensitive to em- ployee's situation. Various forms of accommodation were pro- vided by employer to other em- ployees that were not offered to employee. Employer's failure to provide any significant informa- tion to employee concerning her assignment to Vancouver that could have assisted her in deter- mining her childcare needs was reckless conduct. Compensation tribunal awarded to employee was reasonable. Seeley v. Canadian National Rail- way (May. 2, 2014, F.C.A., J.D. Denis Pelletier J.A., Robert M. Mainville J.A., and A.F. Scott J.A., File No. A-90-13) Decision at 225 A.C.W.S. (3d) 195 was af- firmed. 240 A.C.W.S. (3d) 431. Natural Resources FISHERIES Minister had wide discretion to real- locate portions of allowable catch Minister reduced allocation of total allowable catch for Pacific halibut by three per cent, from 88 per cent to 85 per cent, to commercial fishery sector and increased allocation of total al- lowable catch from 12 per cent to 15 per cent to recreational fishery sector. Applicant applied for judicial review. Judge found that Minister's decision was reasonable and application was dismissed. Applicant appealed. Appeal dismissed. Applicable standard of review of Minister's decision was reasonableness. Minister had wide discretion to reallocate portions of total al- lowable catch between various sectors of fishery. Given wide discretion provided to Minister and fact that Minister was not bound by policy decision of pre- decessors, doctrine of promis- sory estoppel had no application. What applicant sought was not procedural relief and doctrine of legitimate expectation did not provide substantive relief. After lengthy and in depth consulta- tions, Minister reallocated three per cent of total allowable catch for Pacific halibut from commer- cial fishery sector to recreational fishery sector in order to encour- age jobs and economic growth in British Columbia. Minister could take into account social and economic considerations in exercising discretion to reallo- cate part of total allowable catch from one fishery sector to an- other. Minister had no legal duty to use market-based mechanism or to provide financial compen- sation to detrimentally affected sector. Minister's decision to proceed with three per cent real- location of total allowable catch without applying market-based mechanism or another form of compensation was not irrational or incomprehensible when con- sidering record as whole. Deci- sion was not abuse of Minister's discretion and was not made in bad faith or on basis of consid- erations that were irrelevant or extraneous to purposes of Fish- eries Act (Can.). Having regard for context in which decision was made and discretionary and pol- icy nature of decision, Minister's decision was reasonable. Malcolm v. Canada (Minister of Fisheries and Oceans) (May. 20, 2014, F.C.A., Marc Noel J.A., Robert M. Mainville J.A., and Wyman W. Webb J.A., File No. A-144-13) Decision at 227 A.C.W.S. (3d) 255 was affirmed. 240 A.C.W.S. (3d) 485. FEDERAL COURT Charter of Rights FUNDAMENTAL JUSTICE Denying parole did not constitute, in and of itself, deprivation of liberty Prisoner applied for judicial re- view of decision of Parole Board, Appeal Division, which upheld decision of Parole Board deny- ing prisoner day and full parole for deportation. Prisoner was 52 year old UK citizen, who had lived in Canada since childhood but never obtained citizenship, serving life sentence for first de- gree murder of police officer. Murder occurred in 1983, while prisoner was unlawfully at large after having escaped from cus- tody where he was detained for various robberies. Prisoner en- tered shopping mall with inten- tion of robbing bank and noticed officer in food court, and shot him in chest, killing him. Prison- er took officer's handgun, fired two additional shots in air and in food court's crowd. Prisoner was arrested shortly thereafter at residence, where police found of- ficer's handgun, two loaded guns and sawed-off shotgun. Accused had previously been convicted for assault of peace officer, theft, possession of stolen property, mischief and failure to appear and had admitted to commit- ting seven bank robberies. Since 1991, prisoner had been subject to deportation order. Prisoner had been denied parole each of several times he applied because he was found to pose undue risk. Prisoner appealed last such decision. Support for prisoner's transfer to minimum security prison by case management team was withdrawn when prisoner became subject of ongoing crim- inal investigation. Prisoner ar- gued that board erred in law and fettered its discretion in holding that "gradual and structured release" was "requirement" or pre-condition to granting of pa- role. Prisoner alleged that his de- portable status barred him from any means to attain gradual and structured release. Application dismissed; no costs awarded. While board's use of word "re- quirement" to designate "grad- ual and structured release" plan recommended by case manage- ment team might not have been most fortunate, it was not fatal and nothing in its decision sug- gested that it unlawfully fettered its discretion. Board noted that risk to society posed by release of prisoner had slowly decreased over time but it was such that full parole was not warranted at this point. While prisoner contended that his risk to society was now low, he did not allege that board made error on this point. Board's decision was based on relevant statutory criteria and principles, was well reasoned and based on all information that was before it. Denying parole was merely modification of existing sentence and did not constitute, in and of itself, deprivation of liberty guar- anteed by Charter. Collins v. Canada (Attorney Gen- eral) (May. 7, 2014, F.C., Richard Boivin J., File No. T-2243-12) 113 W.C.B. (2d) 309. ONTARIO CIVIL DECISIONS Civil Procedure DISCOVERY Names of students not privi- leged when they originated in other documents Plaintiff was teacher at defendant school. It was alleged that plain- tiff assaulted one of students who was son of another teacher and her husband. Parents complained to school and reported incident to police. Police contacted Chil- dren's Aid Society. Police and society conducted separate in- vestigations. School held meeting of parents and others in commu- nity. It was alleged that husband defamed plaintiff at meeting. Plaintiff was not present at meet- ing. Society and police found that allegations were unfounded. Plaintiff 's employed was ended. Plaintiff sued school and par- ents. Plaintiff brought motion for order that representative of defendant answer certain ques- tions put to him on examination for discovery. School claimed it was prevented from answer- ing outstanding questions and making related production by virtue of privilege established by s. 266(2) of Education Act (Ont.). Motion was dismissed. Plaintiff appealed. Appeal allowed. Infor- mation as to who was invited and attended meeting ref lected on whether there was defamation or libel and if so, how damaging it might have been to plaintiff. Name of parent who had some information as to society's inves- tigation indicated possibility that there was someone who could contribute some understanding as to how investigation was un- dertaken and substance behind its conclusions. Nothing in ma- terial suggested that any of this would or could improve instruc- tion or education of any student. None of information belonged in Ontario Student Record (OSR) and was not subject of privilege. Question as to who attended meeting was about parents, not students. To disallow informa- tion from other sources to be released because it also happened to be in OSR, particularly infor- mation that ref lected nothing more than identity of student, would extend privilege in man- ner that was contrary to public interest. Names of students were in OSR to assist individuals re- ferred to in s. 266(2) of Act for improvement of instruction and other education of pupil. Names of students were not privileged when they originated in other documents where they were used for other purposes. Robinson v. Northmount School for Boys (May. 2, 2014, Ont. S.C.J., Lederer J., File No. CV- 09-378776) Decision at 226 A.C.W.S. (3d) 76 was reversed. 240 A.C.W.S. (3d) 328. Criminal Law CIVIL FORFEITURE Despite errors, still manifestly harsh and inequitable to order forfeiture Civil Remedies Act, 2001 (Ont.), establishes civil forfeiture scheme providing for forfeiture of property used to engage in un- lawful activity (s. 8(1)). Forfeiture subject to "Responsible Owner Exception", where party seeking to avoid forfeiture establishes he is "responsible owner", and "Interest of Justice Exception", which grants courts discretion to relieve against forfeiture if order clearly not in interest of justice. Attorney General of Ontario applied for s. 8(1) forfeiture of single-family, private residence used to engage in unlawful ac- tivity. Owner rented residence to son who had long-standing and serious addiction to drugs and lengthy criminal record. While son lived in residence, he was convicted of various drug and trafficking offences. Applica- tion judge dismissed application, finding that Responsible Owner Exception did not apply, but that Interest of Justice Exception did apply because Attorney Gen- eral inexplicably delayed, thereby prejudicing owner and rendering forfeiture order unfair. Attorney General's appeal dismissed. Evi- dentiary record did not support finding of delay attributable to Attorney General. Forfeiture proceeding commenced within five months of initial police re- ferral and three months of sub- mission to Attorney General. Application judge erred by fail- ing to assess undue delay claim in context of full record and by failing to give effect to s. 8(5) Act which provides there is no limi- tation period for s. 8(1) forfeiture proceeding. Application judge improperly substituted own dis- cretion. Despite errors, still man- ifestly harsh and inequitable and clearly not in interests of justice to order forfeiture. Connection be- tween property and son's illegal activities neither consistent nor overwhelming; forfeiture order would not promote deterrence and crime prevention goals. Ap- plication judge failed to consider evidence as whole regarding rea- sonableness of owner's conduct in relation to property and son's activities when addressing Inter- est of Justice Exception. Owner entirely innocent of any involve- ment in and derived no benefit from unlawful activities and at- tempted to assist son in overcom- ing drug addiction. Owner made diligent efforts to monitor activi- ties at property. Court justified in exercising discretion to refuse forfeiture. Ontario (Attorney General) v. 20 Strike Avenue (May. 16, 2014, Ont. C.A., J.C. MacPherson J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C57014) Deci- sion at 228 A.C.W.S. (3d) 420 was affirmed. 240 A.C.W.S. (3d) 378. Damages EXEMPLARY DAMAGES Punitive damages of $100,000 sufficient to punish Wal-Mart Respondent worked for Wal- Mart. Appellant store manager became abusive and senior man- agement dismissed respondent's complaints. Respondent quit and commenced action for construc- tive dismissal and damages. Jury held that respondent construc- tively dismissed and awarded damages as specified in employ- ment contract, $200,000 in ag- gravated damages for manner of dismissal and $1 million in puni- tive damages against Wal-Mart, and $100,000 for intentional inf liction of mental suffering and $150,000 in punitive dam- ages against manager. Appeals on punitive damages allowed; cross-appeal dismissed. Com- pensatory award for intentional inf liction of mental suffering provided retribution, denuncia- tion and deterrence. Additional award not rationally required and reduced to $10,000. Aggra- vated damages award against Wal-Mart upheld. Award, while high, not so plainly unreasonable it ought to be reduced. To obtain punitive damages, plaintiff must show that defendant's conduct reprehensible and that punitive damages rationally required to punish defendant and meet ob- jectives of retribution, deterrence and denunciation. When claim for breach of contract, plaintiffs CASELAW

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