Law Times

Law Times • November 10, 2014 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Civil Procedure CLASS ACTIONS Collective action permitted where representative does not have direct cause of action against each defendant Consumers seeking repayment of conversion charges imposed by several credit card issuers (banks) on credit card purchas- es made in foreign currencies commenced class action claim- ing that conversion charges vio- lated Consumer Protection Act (Que.). Banks defended, claim- ing that representative plaintiffs did not have standing to sue all banks since they did not have direct cause of action against each of them. Superior Court re- fused to dismiss class action on basis that plaintiffs did not have standing. Court of Appeal up- held conclusion that represen- tative plaintiffs had sufficient interest against all banks to per- mit class action to proceed. Fur- ther appeal to Supreme Court of Canada by banks dismissed. Code of Civil Procedure (Que.), requires plaintiffs to have "suf- ficient interest" and "common interest" in action. When inter- preted in context of collective and representative nature of class action, law permits collec- tive action where representa- tive does not have direct cause of action against, or legal rela- tionship with, each defendant. Judge may authorize class action where representative plaintiff is adequate representative of class and actions against each defen- dant involve identical, similar or related questions of law or fact. Standing must be analyzed through lens of criteria for au- thorization of class actions and understood from perspective of common interest of proposed class, not solely from perspec- tive of representative plaintiff. Conclusion consistent with most other Canadian jurisdic- tions, ensures economy of judi- cial resources, increases access to justice and averts possibility of conf licting judgments. Marcotte c. Banque de Montreal (Sep. 19, 2014, S.C.C., McLach- lin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Mol- daver J., and Wagner J., File No. 35009) Decision at 223 A.C.W.S. (3d) 925 was reversed in part. 244 A.C.W.S. (3d) 74. FEDERAL COURT OF APPEAL Human Rights Legislation DISCRIMINATION Once finding of undue hardship made, complaint should be dismissed Complainant was employee of Canadian International Devel- opment Agency (CIDA) and she applied for postings in Afghani- stan. Complainant had type 1 diabetes and was dependent on insulin. Complainant had two temporary assignments in Af- ghanistan but during second posting she had hypoglycemic incident that resulted in post- ing being curtailed against her wishes and her returning to Canada. Following incident, persons who were being posted to Afghanistan on temporary assignments were required to be assessed medically before being assigned to work there. Health Canada developed Afghani- stan guidelines. Complainant continued to apply for other postings in Afghanistan but she was not offered any other assignment. Complainant filed complaints of discrimination against CIDA and Health Can- ada. Tribunal found that ap- plicant established prima facie case of discrimination against CIDA and Health Canada on basis of disability. Tribunal found that CIDA had not met procedural duty to accommo- date complainant and had not provided bona fide justification for discriminatory practices. Tribunal found it would have caused CIDA undue hardship to accommodate complainant in Afghanistan. Tribunal awarded other monetary and systemic remedies. On application for judicial review, Federal Court Judge found that once finding of undue hardship had been made, complaint should have been dis- missed as conduct would not then be discriminatory prac- tice for purposes of Canadian Human Rights Act. Tribunal's decision was set aside. Human Rights Commission appealed. Appeal dismissed. Based on provisions of Act, only reason- able or correct interpretation of applicable provisions was that once tribunal found that it would have imposed undue hardship on CIDA to accom- modate needs of complainant in posting her to Afghanistan, complaint should have been dis- missed. There was not separate procedural duty to accommo- date under Act that could give rise to remedies if employer es- tablished it had satisfied all parts of test for determining whether prima facie discriminatory standard was bona fide occupa- tional requirement. If employer established that prima facie dis- criminatory standard was bona fide occupational requirement then complaint should be dis- missed. Cruden and Canadian Inter- national Development Agency, Re (May. 20, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., File No. A-214- 13) Decision at 228 A.C.W.S. (3d) 1092 was affirmed. 244 A.C.W.S. (3d) 172. FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Decision to eliminate benefit previously provided was 'cruel and unusual' Interim Federal Health Pro- gram (IFHP) provided health insurance coverage to refugee claimants and others seeking Canada's protection. Governor in Council passed Orders in Council (OICs), which signifi- cantly modified IFHP. Level of coverage was reduced for many and eliminated for others. Three public interest organizations and two individuals brought application to declare OICs invalid. Application granted. OICs violated s. 12 of Canadian Charter of Rights and Freedoms and not saved by s. 1. GIC had intentionally targeted group of poor, vulnerable and disadvan- taged individuals, to encour- age them to leave country more quickly once refugee claims rejected, and to deter "bogus" claimants from seeking pro- tection of Canada. In unusual circumstances of case, decision to limit or eliminate benefit previously provided to discrete minority of individuals coming within administrative control of government subjected them to "treatment" for purposes of s. 12. Treatment was "cruel and unusual", particularly as it af- fected children who had been brought to Canada by their par- ents. Cuts to health insurance affected by OICs potentially jeopardized health, and indeed very lives, of innocent and vul- nerable children in manner that shocked the conscience and out- raged our standards of decency. Declaration of invalidity sus- pended for four months. Canadian Doctors for Refugee Care v. Canada (Attorney Gen- eral) (Jul. 4, 2014, F.C., Anne L. Mactavish J., File No. T-356-13) 244 A.C.W.S. (3d) 73. Environmental Law ENFORCEMENT Failure to apply definition of hazardous recyclable material led to erroneous conclusion Canada was party to interna- tional agreements that required controls on export and import and conveyance of hazardous products that might harm en- vironment. Canada complied with agreements through Ca- nadian Environmental Protec- tion Act, 1999, and Exports and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Can.) (Export and Import Regulations). Respon- dent operated waste petroleum management facilities. VES supplied oil to respondent. Re- spondent delivered three to four million litres per year to Maine implicating Export and Import Regulations. Oil from VES was used oil from garages that per- formed oil changes and oil was not transformed prior to ship- ping to respondent. Product was not subject to any refining process apart from filtration, gravitational settlement and water removal. Respondent did not have permit to export used oil to United States. Notice of intent to issue environmental protection compliance order was issued to respondent. Order directed respondent to cease all export of controlled substance into United States until export permit was issued. Chief Review Officer set aside environmen- tal compliance order finding product was recycled and repro- cessed fuel and not subject to regulation. Appellant appealed. 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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