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PAGE 14 CaseLawLaw FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Election Code was not creature of Indian Act (Can.) Community panel dismissed applicant's appeals of Band Council election. Applicant was unsuccessful candidate in Band Council election. Respondent argued quorum provision of s. 22 of Indian Act (Can.) ("IA"), applied because Election Code was enactment under Interpre- tation Act (Can.) ("InA"). Ap- plication for judicial review was allowed. Code was not creature of IA, but was made under in- herent authority of band. Sec- tion 74 of IA created exception to right of band to establish own election rules by requiring Minister to issue order before IA rules applied to band elec- tions. It was only where band election was governed by IA that quorum provision in InA applied. There was no evidence that community panel acted unfairly or inappropriately. Dennis v. Adams Lake Indian Band (Jan. 19, 2010, F.C., Barnes J., File No. T-587-09) 184 A.C.W.S. (3d) 872 (14 pp.). Human Rights Legislation DISCRIMINATION Commission did not have fair and adequate basis on which to evaluate whether there was sufficient evidence to warrant referral to tribunal Applicant alleged discrimina- tion on basis of disability and failure to accommodate. Com- mission found that was insuffi- cient evidence to justify inquiry because evidence did not show practices and policies of Health Canada were discriminatory on basis of disability either as to applicant or systemically. Com- plaint against Treasury Board was dismissed because board was not party responsible for alleged discriminatory acts and evidence did not support con- clusion policies discriminated against people with disabilities. Application for judicial review in respect of Health Canada was dismissed. Commission correct- ly concluded commission had jurisdiction and proceeded to investigate existence of discrim- inatory acts. Commission held full, fair and thorough investi- gation. Commission carried out duty to properly investigate and reached reasonable conclusion within commission's area of ex- pertise. Application for judicial review in respect of board was allowed. Commission made unreasonable decision by fail- ing to address subject matter of complaint when commission adopted investigator's report when investigator failed to con- sider policy monitoring obliga- tions of board. Commission did not have fair and adequate basis on which to evaluate whether there was sufficient evidence to warrant referral to tribunal. Panacci v. Canada (Attorney General) (Feb. 3, 2010, F.C., Phelan J., File No. T-183-09; T-184-09) 184 A.C.W.S. (3d) 1083 (25 pp.). SUPREME COURT OF CANADA Charter Of Rights ENFORCEMENT OF RIGHTS In extreme case of state misconduct, departure from statutory limits of sentencing may be available remedy under s. 24(1) of Charter Accused pleaded guilty to im- paired driving and flight from police. Accused suffered broken ribs and collapsed lung requir- ing emergency surgery from police's use of excessive force during arrest. Trial judge found violations of Canadian Charter of Rights and Freedoms from police conduct and imposed discharge as Charter remedy. Court of Appeal upholding finding of violation of s. 7 of Charter but increasing sentence to statutory minimum fine. Crown's appeal and accused's cross-appeal dismissed. Facts apriL 12, 2010 • 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: making out Charter violation were relevant to imposition of fit and proportionate sentence under Criminal Code. No need in this case to resort to s. 24(1) or depart from statutory mini- mums. In extreme case of state misconduct, departure from statutory limits of sentencing may be available remedy under s. 24(1) of Charter. R. v. Nasogaluak (Feb. 19, 2010, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32423) Appeal from 229 C.C.C. (3d) 52, 76 W.C.B. (2d) 741 dis- missed. 86 W.C.B. (2d) 528 (45 pp.). ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR Wife did not establish disqualifying conflict of interest Applicant wife in matrimonial action sought to remove firm as solicitors of record for re- spondent husband. N., senior partner at firm, returned call to applicant. Wife was consider- ing changing lawyers and called N. on basis of recommendation from mutual friend. Although wife and N. agreed to meet, wife cancelled appointment after de- ciding not to change counsel. N. made no notes of conversa- tion, did not send account nor did he open file. He recalled they discussed fact he had previ- ously met husband when he was being represented by another lawyer, S., in connection with failure of two previous marriag- es. Introductions were casual without any intention to estab- lish solicitor-client relationship. Five months later, husband re- tained firm to represent him in matrimonial litigation with wife. He was referred to N. by S. who continued to represent husband in proceedings relating to two previous marriages. Wife argued that phone call placed N. in conflict of interest when he was approached five months later and retained by husband. ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 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. Application dismissed. Wife did not satisfy test to establish dis- qualifying conflict of interest. She and N. never had solicitor- client relationship, N. did not receive confidential information from wife, and concern about element of strategy and tactics underlying motion. Tauber v. Tauber (Dec. 23, 2009, Ont. S.C.J., Macdonald J., File No. FS-09-00350104) 184 A.C.W.S. (3d) 902 (4 pp.). Contracts FORMATION Site Selection Process did not result in binding agreement between First Nation and Ontario C.R. is only commercial casino located on First Nation reserve in Ontario. It was established as pilot project to benefit all On- tario First Nations economically, intention being that one First Nation would be selected as host site but that revenues would be sharing among all First Nations in province. M.F.N., casino's host with population of approxi- mately 1,500 people, claimed to be entitled to 35% of net profits, in perpetuity, as well as to portion of gross revenues representing its share of operating compensa- tion. M.F.N. claimed that Site Selection Process in which it was chosen as host site gave rise to binding contract with Govern- ment of Ontario that it would receive 35% of net profits, as set out in its proposal submitted to Selection Panel in November 1994. M.F.N. is one of 134 First Nations in Ontario. Remaining 133 First Nations, represented by Chiefs of Ontario and On- tario First Nations Limited Partnership, opposed M.F.N.'s claim. They argued that Site Se- lection Process was no more than that and that revenue sharing as between all of Ontario's First Nations, including host's share, was to be negotiated in separate round of negotiations following site selection that would embrace broader and more representative group of First Nation interests. Trial judge dismissed M.F.N.'s action. Trial judge found in es- sence that Site Selection Process did not result in binding agree- ment between M.F.N. and On- tario entitling M.F.N. to 35% share of net revenues from C.R.. Trial judge found that reasonable person, viewing evidence objec- tively, would not have concluded that binding agreement on reve- nue sharing was to, or did, result from Site Selection Process. In addition, he found that M.F.N.'s representatives never subjectively believed they had such contract. He also rejected M.F.N.'s fidu- ciary duty argument. There was no merit in any of grounds of appeal advanced by M.F.N. Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs) (Jan. 22, 2010, Ont. C.A., O'Connor A.C.J.O., Blair and Juriansz JJ.A., File No. C49485) Deci- sion at 171 A.C.W.S. (3d) 834 was affirmed. 184 A.C.W.S. (3d) 986 (99 pp.). Professions BARRISTERS AND SOLICITORS Conspiracy action against lawyers was dismissed on summary judgment motion Corporate plaintiff sued lawyers alleging they conspired to trespass and unlawfully disable an indus- trial machine, which individual had contracted to buy. Lawyers allegedly conspired with and on behalf of own client, the vendor, who alleged non-payment. Ven- dor's prior counsel had registered security interest against plaintiff corporation, although purchase contract signed by individual, who had signed contract on be- half of corporation with different name than plaintiff's. Defendants retained bailiff and technician to disable machine pursuant to s. 62 of Personal Property Security Act (Ont.). Lawyers allegedly acted despite knowledge that security not properly registered versus plaintiff, and having hid that information from bailiff. Lawyers sought summary judg- ment dismissing action. Five re- lated actions proceeding to trial, tried together. Motion granted and claim dismissed. At least arguable that lawyers were joint tortfeasors with client. No find- ing that conspiracy claim could not be brought against lawyers You're down a move. Ready to consider another angle? SMSS.COM CHARLOTTETOWN Untitled-2 1 FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 4/6/10 9:24:53 AM

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