Law Times

Page 18 aPril 13, 2015 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Police DISCIPLINE Delay in issuance of suspension without pay and allowances order did not cause significant prejudice Petitioner disputed issuance of suspension without pay and al- lowances order (SPAO) against him pending outcome of dis- ciplinary proceedings taken against him by employer. Acting Commissioner of Royal Cana- dian Mountain Police (RCMP) denied petitioner's grievance. Acting Commissioner found that petitioner was not victim of undue delay in issuance of SPAO and in processing of grievance. Acting Commissioner found that duration of SPAO was not unreasonable and that it was warranted in particular circum- stances of case. Acting Com- missioner held that petitioner's behaviour constituted breach of Code of Conduct of RCMP and that it was so outrageous as to sig- nificantly affect performance of his duties under Royal Canadian Mounted Police Act. Petitioner applied for judicial review. Judge concluded that petitioner failed to establish that delay was so as oppressive as to taint proceed- ings and to cause serious preju- dice. Judge was satisfied that Acting Commissioner's conclu- sion was reasonable. Petitioner appealed. Appeal dismissed. Delay in matter did not impact fairness of hearing. Petitioner did not suffer significant preju- dice as result of delay. Acting Commissioner's decision was reasonable. Decision was based on interpretation of RCMP sus- pension policy of which he had significant expertise. Interpre- tation and conclusion of Act- ing Commissioner were open to him. Reasons were thorough enough to explain how Acting Commissioner reached conclu- sion and for judge to judicially review decision. Judge properly applied standard of review. Camara v. Canada (Feb. 12, 2015, F.C.A., Johanne Gauthier J.A., D.G. Near J.A., and A.F. Scott J.A., File No. A-268-14) Decision at 240 A.C.W.S. (3d) 749 was affirmed. 250 A.C.W.S. (3d) 150. FEDERAL COURT Air Law AIRPORTS Cancellation of employee's transportation security clear- ance upheld on judicial review Employee worked for employer that operated out of airport. Em- ployee had held transportation security clearance (TSC) since 2001. In 2013, Transport Canada received report from police indi- cating employee was involved in organized crime group that im- ported and exported drugs. Re- port noted lack of sufficient evi- dence to charge employee, but that he continued to facilitate movement of drugs with assis- tance of co-workers. Employee was notified his TSC was under review and was provided with information in report and given opportunity to make submis- sions. Employee denied any in- volvement in alleged incidents. Director General of Aviation Se- curity cancelled employee's TSC based on police report and rec- ommendation of TSC Advisory Body. Employee brought appli- cation for judicial review. Ap- plication dismissed. Employee had not been denied procedural fairness, and Director General's decision was reasonable. Duty of procedural fairness was at lower end of spectrum and was satis- fied in this case. Employee knew allegations against him and had opportunity to make submis- sions. Decision was based on well-documented and extensive evidence with no suggestion of bias. Director General had wide discretion under s. 4.8 of Aero- nautics Act (Can.), with respect to TSC. Decision was based on reasonable belief that employee could unlawfully interfere with civil aviation in accordance with TSC Program Policy. Director General was entitled to rely on police report, which was de- tailed and based on information from multiple law enforcement sources. Criminal convictions were not benchmark to justify revocation of TSC. Further, con- duct at issue did not have to be direct interference with aviation security. Brown v. Canada (Attorney Gen- eral) (Nov. 14, 2014, F.C., Cathe- rine M. Kane J., File No. T-1800- 13) 250 A.C.W.S. (3d) 10. ONTARIO CIVIL DECISIONS Appeal FINAL OR INTERLOCUTORy ORDER Decision granting leave to amend statement of claim was interlocutory in nature Plaintiff sued defendant in neg- ligence, alleging that defendant had actual and constructive knowledge of fraudulent deal- ings by third party that caused plaintiff to lose about $17 mil- lion. Judge struck out portions of statement of claim that al- leged negligence as result of constructive knowledge on basis that circumstances of case were not capable of establishing rela- tionship of sufficient proximity to found duty of care. Plaintiff brought motion to amend state- ment of claim to reintroduce allegations grounded in con- structive knowledge. Plaintiff was granted leave to amend statement of claim. Defendant appealed. Plaintiff brought mo- tion to quash appeal on basis that order was interlocutory, not final. Appeal quashed. De- fendant misconceived nature of motion judge's decision. Deci- sion allowed matter to proceed to trial and did not have effect of depriving defendant of substan- tive defence. It remained open to defendant to advance substan- tive defence to argument that duty to non-customer could be created based on constructive knowledge and that construc- tive knowledge could be made out on facts. Decision was inter- locutory in nature and appeal lay to Divisional Court. Dynasty Furniture Manufactur- ing Ltd. v. Toronto-Dominion Bank (Feb. 23, 2015, Ont. C.A., John Laskin J.A., Paul Rouleau J.A., and Grant Huscroft J.A., File No. CA M44316, C59401) 250 A.C.W.S. (3d) 11. Judgments and Orders SETTING ASIDE University satisfied test for set- ting aside default judgment, writ of execution and garnishment On April 3, 2012, plaintiff ob- tained $163,000 default judg- ment against defendant univer- sity. On April 12, 2012, plaintiff obtained writ of execution, and on April 16, 2012, it issued gar- nishment notice, from which it recovered $163,000. Univer- sity moved to set aside default judgment, writ and garnish- ment. Motion granted. Plain- tiff 's action alleged that parties had entered into agreement for plaintiff to assist university in recruitment of students and share tuition fees. It claimed university had breached its fidu- ciary duty by cancelling agree- ment and establishing satellite campus in Toronto without involvement of plaintiff. In its proposed statement of defence, university claimed it had cancel- lation rights under arrangement if certain levels of recruitment were not achieved or minimal levels were not reached. Univer- sity said that it was indebted to plaintiff for only $52,000, and thus, it had been overbilled. Thus, save for $52,000, univer- sity had shown defence for claim upon which default judgment was based. There was also genu- ine issue for trial about whether relationship between parties was fiduciary. University satis- fied test for setting aside default judgment, writ of execution and garnishment. Save for $52,000, garnished monies should be re- turned to university. Education Invention Centre of Canada v. Algoma University (Feb. 24, 2015, Ont. S.C.J., Per- ell J., File No. CV-11-433568) 250 A.C.W.S. (3d) 112. Real Property EASEmENTS Right of way declared valid Applicant property was used for almost 30 years as medical office. Respondent's property was used for slightly less time as law office, residence, and planning office. Respondent was conveyed its property and right of way. Right of way was for purpose of allowing access and egress by predecessors of respondent on par with that of predecessors of applicant. Right of way was always referred to in conveyances of either tenement. Applicant wished to erect fence but order enjoined applicant from so doing. Applicant sought determination that right of way was extinguished. Application dismissed. Right of way was de- clared valid and subsisting right of way. Neither tenement relin- 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. 2015 COMPENSATION SURVEY law departments grow. partnerships evolve, change, Salaries canadianlawyermag.com/surveys Managing partners and law department leaders, share what's happening in your organization. Survey closes May 4, 2015 Untitled-3 1 2015-04-08 9:59 AM

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