Law Times

Law Times • December 1, 2014 Page 13 www.lawtimesnews.com FEDERAL COURT OF APPEAL Civil Procedure DISCOVERY Judge erred in finding that undisclosed documents were subject to litigation brief privilege During protracted discovery process, plaintiffs came into possession of documents that defendant Canada alleged were privileged. Canada sought or- der for return of all privileged documents while plaintiffs sought order requiring Canada to produce other documents over which Canada claimed privilege and had not pro- duced. Plaintiffs' motion was dismissed and Canada's motion was allowed in part. Prothono- tary found that Canada failed to establish litigation brief or settlement privilege but found that documents were subject to solicitor-client privilege and were to be returned to Canada. Prothonotary found there was no waiver of privilege. Plaintiffs appealed prothonotary's deci- sion. Appeal was dismissed. Judge upheld Canada's claim that certain documents were protected from disclosure on basis that they were subject to litigation brief privilege and upheld Canada's claim to solic- itor-client privilege over docu- ments Canada itself disclosed to plaintiffs. Plaintiffs ap- pealed. Appeal allowed. Judge erred in finding that Canada established that undisclosed documents were subject to liti- gation brief privilege. Contents of documents did not establish that it was more likely than not that each document was pre- pared for dominant purpose of seeking legal advice or aiding in conduct of litigation. Claim to litigation privilege was dis- allowed. Evidence did not sup- port judge's finding that all of allegedly privileged documents were inadvertently disclosed in context where there was no in- tention to waive privilege. Evi- dence fell short of establishing that disclosure was inadvertent. There was no direct evidence that Canada did not intend to waive claim to privilege. Can- ada's claim to solicitor-client privilege had been waived in re- spect of all documents at issue that were disclosed to plaintiffs. Chemawawin First Nation v. R. (Sep. 12, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-350-12, A-351- 12, A-358-12) Decision at 220 A.C.W.S. (3d) 505 was reversed. 244 A.C.W.S. (3d) 809. Contempt of Court PUNISHMENT Loss of employment and depression did not excuse respondent's decision to continue behaviour Applicant filed human rights complaint alleging respondent violated s. 13 of Canadian Hu- man Rights Act by posting ma- terial on Internet that constitut- ed discrimination on grounds of religion, national or ethnic origin, race or colour. Tribu- nal concluded that complaint was substantiated and ordered respondent to cease and desist communicating material and pay fine of $4,000. Respondent's application for judicial review was dismissed. Respondent failed to remove all messages tribunal found violated s. 13 of Act from Internet and contin- ued to post additional material of similar nature. Respondent was found in contempt. Re- spondent was sentenced to 30 days' imprisonment. Respon- dent appealed. Appeal dis- missed. Sentence was not unfit. Respondent's prior time served in prison in relation to criminal charges should not reduce sen- tence imposed here. Respon- dent's loss of employment and depression did not excuse his decision to continue to com- municate discriminating mes- sages after being enjoined by tribunal to stop. Repeal of s. 13 of Act did not justify respon- dent's decision not to remove Internet postings. Fact that Ca- nadian Charter of Rights and Freedoms protected freedom of expression did not serve as mit- igating factor here or indicate that sentence was not propor- tional to offence committed. Respondent showed no remorse and did not offer sincere apol- ogy. Respondent showed f la- grant disregard for court order. Sentence of 30 days' imprison- ment was fit. Warman v. Tremaine (Sep. 9, 2014, F.C.A., Eleanor R. Daw- son J.A., Johanne Trudel J.A., and Wyman W. Webb J.A., File No. A-493-12) Decision at 222 A.C.W.S. (3d) 1024 was af- firmed. 244 A.C.W.S. (3d) 835. FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Appeal tribunal usurped its role to observe and oversee election In 2010 applicant was candidate for chief and he lost election by two votes. Appeal tribunal dis- missed applicant's appeal but judge allowed application for judicial review. Second elec- tion was to be held in March 2013 and applicant was again candidate for chief. On date of election chief electoral officer posted notice that indicated that applicant owed Band mon- ey and was disqualified from being candidate in election. All votes cast for applicant were placed in envelope and marked as disqualified. Applicants ap- pealed. Appeal tribunal upheld decision to disqualify applicant and dismissed appeal. Appli- cants applied for judicial review of appeal tribunal's decision. Application granted. Appeal tribunal usurped its role ac- cording to Sturgeon Lake First Nations Election Act, 2009 and it usurped its role according to custom to observe and oversee election. Appeal tribunal ac- tively participated in decision to disqualify F as candidate in election. Appeal tribunal did not merely observe and over- see election. Informed person could reach no other conclu- sion than that there was rea- sonable apprehension of bias. Appeal tribunal violated proce- dural fairness and decision was quashed on that basis. Matter was remitted to appeal tribunal for re-determination. Felix v. Sturgeon Lake First Na- tion (Sep. 23, 2014, F.C., Cath- erine M. Kane J., File No. T-927- 13) 244 A.C.W.S. (3d) 754. Immigration SELECTION AND ADMISSION Officer fixated and viewed application through prism of mother's failure to declare applicant Applicant's mother sponsored applicant as member of family class. On three occasions moth- er did not declare applicant as non-accompanying relative. Applicant was refused perma- nent residence under family class. Applicant was excluded because of non-disclosure of her mother. Officer found that humanitarian and compas- sionate (H&C) grounds did not overcome applicant's exclusion due to mother's non-disclosure. Applicant sought judicial re- view. Application granted. Of- ficer was fixated on and viewed H&C application through prism of mother's failure to de- clare applicant. There was no genuine consideration of sub- missions made in support of ap- plicant separate and apart from those relating to finding of in- eligibility based on mother's re- peated misconduct in failing to declare applicant. Gan v. Canada (Minister of Citi- zenship and Immigration) (Aug. 26, 2014, F.C., Henry S. Brown J., File No. IMM-3653-13) 244 A.C.W.S. (3d) 920. VISITORS Unreasonable to say not sure foreign nationals met requirements when employer sure that they did Work permits. Four foreign nationals were citizens of Be- lize who had been recruited to work for fast food restaurant chain in Canada under Tempo- rary Foreign Worker Program. Franchisees of restaurant used recruiting firm to find and screen applicants and then in- terviewed foreign nationals via video or teleconference. Offer of employment was made to each foreign national and posi- tive Labour Market Opinions (LMO) were obtained from Ser- vice Canada allowing employ- ers to hire foreign nationals for positions in question, for full- time positions as Food Service Counter Attendants, corre- sponding to National Occupa- tional Classification 6641. Job advertisement and LMO Appli- cation in each case stated with respect to prior experience that no experience was required, on the job training was provided, although some previous experi- ence in fast food industry would be preferred. Before coming to Canada to begin their employ- ment, each foreign national had to obtain work permit from Citizenship and Immigration Canada. To obtain work per- 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. Contact $BSTXFMM.FEJB4BMFT@thomsonreuters.com for details. RECRUITING? POST YOUR POSITION ON GREAT RATES. GREAT REACH. GREAT RESULTS. Untitled-6 1 14-06-17 2:09 PM

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