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PAGE 16 CaseLawLaw FEDERAL COURT OF APPEAL Courts JURISDICTION Section 74(d) of Immigration and Refugee Protection Act (Can.) does not preclude appeal under s. 27 of Federal Courts Act Motion by respondent to quash appeal on ground this court had no jurisdiction to hear ap- peal since Federal Court Judge did not certify that serious question of general importance was involved and did not state question as required pursuant to s. 74(d) of Immigration and Refugee Protection Act (Can.) ("IRPA"). Appellant had ap- pealed order of Federal Court by which judge had asserted jurisdiction pursuant to s. 87 of IRPA to uphold national se- curity claims of privilege over certain documents which had been inadvertently disclosed to appellant and his counsel. Judge also ordered return of disputed documents and de- struction of any copies. Federal Court Judge determined that court had jurisdiction to apply s. 87 of IRPA to disputed docu- ments. Issue whether Federal Court Judge should have pro- ceeded to hear and determine privilege claim pursuant to s. 87 of IRPA or pursuant to some other provision, notably s. 38 of Canada Evidence Act ("CEA"). Appellant contended that Federal Court Judge erred in law and exceeded her ju- risdiction in applying s. 87 of IRPA rather than provision in CEA. Motion to quash dis- missed without prejudice to re- spondent raising jurisdictional issue under s. 74(d) of IRPA on merits of appeal. With respect to review of decisions made un- der IRPA no appeal lies from Federal Court to this court unless in rendering judgment Federal Court certifies that se- rious question of general im- portance is involved and states question pursuant to s. 74(d) of IRPA. However, this provision does not preclude appeal un- der s. 27 of Federal Courts Act (Can.) ("FCA"). Though this court may, pursuant to s. 52(a) of FCA, quash appeal in cases in which it has no jurisdiction, standard for doing so on pre- liminary motion is high. Here, it could not be concluded that appeal manifestly lacked sub- stance nor was it plain and ob- vious that appeal had no chance of success. In circumstances of case it was preferable to allow appeal to proceed and thus al- low panel of this court which will be appointed to hear ap- peal to determine whether this court had jurisdiction in mat- ter. Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (Jan. 5, 2011, F.C.A., Mainville J.A., File No. A-431-10) 197 A.C.W.S. (3d) 106 (7 pp.). Immigration EXCLUSION AND EXPULSION Minister had no reasonable basis for arguing appeal may proceed without certified question Motion by appellant Minister for stay of Federal Court or- der quashing decision of Immigration Appeal Division ("IAD") and requiring recon- sideration of deportation or- der. Respondent was subject of deportation order and ap- pealed order without success. Respondent was granted leave to apply for judicial review of IAD decision but was deport- ed before his application for judicial review was heard on December 8, 2010. Hearing of his application for judicial review resulted in order of Federal Court dated December 22, 2010, quashing IAD deci- sion and requiring deportation appeal to be considered by dif- ferently constituted tribunal. Minister appealed Federal Court order and now sought stay of Federal Court order pending disposition of ap- peal. Minister contended that order under appeal was based on incorrect interpretations of provisions of Immigration and Refugee Protection Act (Can.), that were determined by judge without giving Minister op- portunity to make submis- sions. Minister was concerned that judge had commented in endorsement to order to effect that IAD failed to consider whether to stay deportation or- der with conditions and that re- spondent was to be returned to Canada forthwith. Order un- der appeal was governed by s. 74 of Act which provided that order could not be appealed in absence of serious question of general importance certified by judge who made order. Minister contended that Minister was entitled to appeal without certi- fied question. Motion for stay dismissed without prejudice to right of Minister to make mo- tion in Federal Court for ap- propriate relief and depending upon outcome of that motion, to submit new motion for stay March 28, 2011 • Law TiMes COURT DECISIONS 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: 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. in this court if circumstances warranted. Federal Court Judge had jurisdiction to make order disposing of respondent's application for judicial review. Although judge may have breached rule of procedural fairness because he did not have benefit of submissions from Minister when he interpreted s. 52 as he did or when he con- cluded that IAD was obliged to put its mind to question of whether to stay deportation with conditions, such error if it occurred would not have de- prived judge of his jurisdiction to set aside decision of IAD and order rehearing. Accordingly, Minister did not have reason- able basis for arguing that this appeal may proceed without certified question and Minister had not established that serious question was raised on appeal. Canada (Minister of Citizenship and Immigration) v. Aziz (Jan. 19, 2011, F.C.A., Sharlow J.A., File No. A-488-10) 197 A.C.W.S. (3d) 191 (9 pp.). Labour Relations CERTIFICATION Application of Canada Labour Code did not impair right to self-government Application by employer for judicial review of board's deci- sion dismissing its preliminary objection that Part 1 of Canada Labour Code did not apply. Case arose following respon- dent's application to be certi- fied as bargaining unit com- prised of public safety police officers. Applicant objected on basis respondent's position was inconsistent with its aborigi- nal right to self-government. Board dismissed preliminary objection and then went on to grant certification. Board did not accept that right be- ing claimed was right to ensure public safety on reserve and found no evidence of ancestral practice. Ultimately, board concluded that applicant failed to establish collective labour relations with Pessamit police workforce was integral to ab- original culture. Applicant ar- gued board erred in adopting its own characterization of right being claimed and applying the Code to impair their right to self-government. Applicant also argued procedural fairness was breached. Application dis- missed. It was undisputed that Code was about management of labour relations. Right being claimed was applicant's right to regulate police workforce la- bour relations. Ensuring public safety was incident to this right. Board did not err in relying on www.lawtimesnews.com Scugog Island First Nation, which established that rights surrounding labour relations were sufficiently well-defined that all related claims should be characterized as such and, thus, Code applied. Applicant complained there was no tran- script of hearing and it received the reasons just one day before the appeal deadline, but it was not prejudiced by these factors. Applicant provided no basis for its claim the presence of the board's lawyer at the hearing gave rise to a reasonable appre- hension of bias. Conseil des Innus de Pessamit v. Assoc. des policiers et policieres de Pessamit (Nov. 12, 2010, F.C.A., Blais C.J., Noel and Pelletier JJ.A., File No. A-146- 10) 197 A.C.W.S. (3d) 2 (13 pp.) FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Chief entitled to notice that Band Council intended to remove her from office Application by Chief of First Nation group for declaration that she continued to be law- fully elected Chief. Chief in- formed Band Council that she would be off work indefinitely because of severe, acute anxi- ety and depression. Without notice to Chief, Band Council made decision to remove Chief from office. Application grant- ed. Chief was entitled to rein- statement. Approach taken by Band Council was not proce- durally fair. Requirement for explicit notice to person whose rights were in jeopardy was fun- damental component of duty of fairness. Chief was entitled to notice that Band Council intended to remove her from office. Metansinine v. Animbiigoo Zaagi'igan Anishinaabek First Nation (Jan. 10, 2011, F.C., Barnes J., File No. T-1064-10) 197 A.C.W.S. (3d) 1 (15 pp.). Courts ABUSE OF PROCESS Disclosure made and disclosure process had not resulted in abuse of process H. had been subject of secu- rity certificate since 2002. H. sought exclusion of summaries of conversations as evidence, based on doctrine of abuse of process. In alternative, stay of proceedings was also be- ing sought in consideration of number of breaches which, when considered cumulatively, created such effect as to require such remedy. In addition, spe- cial advocates also submitted during closed hearings that stay of proceedings should be based on their dissatisfaction with number of measures taken by Ministers to obtain informa- tion in relation to H.. Relevant remedies sought were denied. Substantial portion of relevant arguments made by H. had already been addressed in two other decisions, one dealing with reasonableness of certifi- cate, other with constitutional questions. Summaries of con- versations which H. sought to exclude as evidence had been validated in so far as their con- tent was concerned. Also, new disclosure process with par- ticipation of special advocates was found to be constitution- al. Immigration and Refugee Protection Act (Can.) ("IRPA"), disclosure process and disclo- sure made (some of it disclos- ing summaries of originals) had not resulted, in this case, in abuse of process. Substantial, important disclosure took place in interest of H. which gave him knowledge of case and he was able to respond to it. There was not full disclosure since na- tional security concerns needed to be addressed, but classified information was known by special advocates and they ac- tively tested it on behalf of H.. In any event, since there was ample disclosure, H. did not show or suffer actual prejudice in his capacity to answer case made against him. With in- volvement of special advocates, IRPA process for disclosure of evidence did give H. ability to instruct both his public counsel and special advocates. Further, remedies were granted to rec- tify and breaches in searching H.'s home, namely return of all material seized to H. as result of search and new requirement of court authorization prior to future search, production of two human source files viewed by court and special advocates. Cumulative effect of differ- ent factors had not resulted in abuse of process. Stay of pro- ceedings was not appropriate remedy. Harkat (Re) (Dec. 9, 2010, F.C., Noel J., File No. DES- 5-08) 197 A.C.W.S. (3d) 103 (72 pp.). Customs And Excise EXCISE TAX Excise tax applied to both new and used imported vehicles with air conditioners

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