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PAGE 18 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law COURTS Scheme under s. 38 of Canada Evidence Act constitutional Accused charged with terror- ism-related off ences. Disclosure redacted as a result of national security privilege claims under s. 38 of Canada Evidence Act to be litigated in Federal Court. Section 38 scheme is constitu- tional. Assessment of Crown privilege claims not part of su- perior court's core jurisdiction. Trial judges are able to protect fair trial rights under s. 38 pro- visions. Trial judges should be notifi ed of s. 38 claims and dis- closure of privileged informa- tion may be authorized to trial judges to permit them to assess eff ect of non-disclosure on trial fairness. Where trial judge lacks suffi cient information to assess trial fairness a stay of proceed- ings may result. R. v. Ahmad (Feb. 10, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 33066) Decision at 257 C.C.C. (3d) 135, 89 W.C.B. (2d) 325 reversed. 92 W.C.B. (2d) 764 (71 pp.). Publication Bans And Restrictions EXHIBITS Trial judges must regulate access to exhibits by balancing competing interests Accused charged with aid- ing suicide. At trial, Crown introduced videotaped state- ment accused made to police. Journalists recorded portions of statement as it was played in court. CBC applied to trial judge for permission to broad- cast its recording. Trial judge ruled that broadcasting was not permitted by Rules of Court. Accused acquitted. CBC's appeal from trial judge's rul- ing dismissed. Rules of Court applied only to proceedings themselves and not to exhib- its. Trial judges must regulate access to exhibits by balancing competing interests. Accused's acquittal and intellectual dis- ability in case at bar were fac- tors that prevailed over open court principle. R. v. Dufour (CBC v. Th e Queen) (Jan. 28, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abel- la, Charron, Rothstein and Cromwell JJ., File No. 32987) 92 W.C.B. (2d) 791 (17 pp.). FEDERAL COURT OF APPEAL Employment Insurance DECISIONS OF UMPIRE Unreasonable to conclude applicant had lost his employment because of misconduct Application for judicial review of decision of umpire that ap- plicant lost his employment because of misconduct. Ap- plicant drank during evening prior to date fi xed by employ- er for alcohol and drug test, however, result of test did not support view that applicant either drank or took drugs in quantity exceeding permis- April 18, 2011 • lAw Times Subscribe to Law Times And receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE COURT DECISIONS earlug.indd 1 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. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 11/10/09 11:20:32 AM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. sible levels of concentration set out in employer's written policy. Commission's evidence resulting from telephone con- versations with representa- tive of employer to eff ect that employer had "zero tolerance policy" regarding alcohol and drugs appeared totally at odds with written policy itself ad- duced in evidence. Application allowed. It was unreasonable to conclude as both board and umpire did that applicant had lost his employment because of misconduct as evidence before them was totally insuffi cient to support such conclusion. Lepretre v. Canada (Attorney General) (Jan. 26, 2011, F.C.A., Nadon, Pelletier and Mainville JJ.A., File No. A-246-10) 197 A.C.W.S. (3d) 892 (4 pp.). FEDERAL COURT Immigration VISITORS Visa officer did not discount bone fides of applicant coming to Canada to serve as surrogate mother Application for judicial review of denial of application for Temporary Resident Visa. Ap- plicant was citizen of Ghana who sought to come to Canada to serve as surrogate mother for her sister's child. Applicant was single, had no children, did not own home in Ghana, had mod- est fi nancial means and limited assets. Applicant was very close to sister in Canada. Visa Offi - cer denied request on basis that offi cer was not satisfi ed that applicant would leave Canada at end of her stay. Applicant contended that Visa Offi cer ig- nored purpose of visit, did not Untitled-5 1 www.lawtimesnews.com 4/14/11 1:02:57 PM presume good faith and had no basis to doubt legitimacy of purpose of trip or applicant's statement that she would re- turn to Ghana. Application dismissed. Altruism or bona fi des of purpose for coming to Canada does not translate into positive factors which would necessarily satisfy offi cer that applicant would return to her country of origin or otherwise displace relevant countervail- ing concerns. Visa Offi cer was under duty to be satisfi ed that applicant would return to her country of origin and onus was on applicant to satisfy offi cer to that eff ect. Visa offi cer did not discount bona fi des of purpose of trip or make any assump- tions. Record indicated that he relied solely on evidence before him. With respect of offi cer's treatment of fi nancial consid- erations, absence of any sig- nifi cant ties to her country of residence was clearly relevant, and objective factor which of- fi cer was obligated to take into account. Donkor v. Canada (Minister of Citizenship and Immigration) (Feb. 8, 2011, F.C., Rennie J., File No. IMM-2426-10) 197 A.C.W.S. (3d) 995 (9 pp.). Social Welfare CANADA PENSION PLAN Commissioner did not have jurisdiction to refuse to convene review tribunal hearing Application by daughter of deceased for judicial review of decision of Commissioner of Review Tribunals closing appeal fi le without conven- ing review tribunal hearing. Estate of deceased applied for and received Canada Pension Plan death benefi t after de- ceased died. Daughter subse- quently applied for same death benefi t on basis that she was person responsible for funeral expenses. Daughter's applica- tion was denied on basis that death benefi t had already been paid to eligible person. Daugh- ter unsuccessfully requested reconsideration. Daughter appealed to review tribunal. Commissioner determined ap- peal could not succeed and so closed fi le without convening review tribunal hearing. Appli- cation granted; matter remitted for re-determination. Commis- sioner did not have jurisdiction to refuse to convene review tribunal hearing. Standard of review was correctness in light of absence of privative clause, commissioner's relative lack of expertise, importance of ap- peal rights, and jurisdictional nature of issue. Prior authority had determined commissioner did not have jurisdiction un- der s. 3(2) of Review Tribunal Rules of Procedure (Can.), to deny right of appeal provided by s. 82 of Canada Pension Plan. Th is conclusion was supported by fact that appeal proceeded as hearing de novo. Additional factor supporting this conclusion in this case was possibility of appeal from re- view tribunal decision to Pen- sion Appeals Board with leave. No such leave jurisdiction was granted to commissioner for appeals to review tribunal. No such jurisdiction arose by nec- essary implication either. De- termining appeal without con- vening review tribunal hearing amounted to breach of proce- dural fairness. Lambie v. Canada (Attorney General) (Jan. 28, 2011, F.C., Mandamin J., File No. T-686- 09) 197 A.C.W.S. (3d) 1046 (27 pp.). Includes a FREE digital edition! Go to: www.lawtimesnews.com

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• Alleged Discrimination
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