Law Times

Law Times • January 11, 2010 CaseLawLaw FEDERAL COURT OF APPEAL Appeal TIME No special circumstances justifying delay in commencing appeal Applicant received notice of intention to revoke applicant's charitable registration. Appli- cant filed notice of objection. Applicant filed judicial review application seeking stay of ex- ecution of revocation pend- ing hearing and disposition of objection process and appeal process. Minister issued no- tice of confirmation of intent to revoke applicant's chari- table registration. Applicant did not appeal notice of con- firmation and time expired. Respondent's motion for order quashing judicial review appli- cation was allowed. Applicant's application was moot because of notice of confirmation. Ap- plicant's motion for extension of time to appeal Minister's decision to revoke applicant's charitable registration was dis- missed. No evidence was filed to show applicant had argu- able case. There was nothing in record to show applicant had continuing intention to appeal during appeal period. There were no special circumstances justifying delay in commenc- ing appeal. Faith Assemblies Mission Inter- national v. Canada (Nov. 2, 2009, F.C.A., Noel, Nadon and Trudel JJ.A., File No. A-530- 07) Order No. 009/313/196 (7 pp.). Competition Law REVIEWABLE PRACTICES As communications reached signifi- cant portion of public, they were made "to public" This was appeal from tribunal's decision finding that respon- dents did not violate s. 74.01 of Competition Act (Can.), because misrepresentations made were not made to public. Respondents operated career consulting business. Appellants alleged that respondents made number of misleading repre- sentations to potential clients regarding prospects for success in job market, which violated s. 74.01(1)(a) of Act. Tribu- nal found that respondents made three types of represen- tations to prospective custom- ers, screening representation, contacts representation and 90 day/good job representation. Tribunal held that misrepre- sentations were misleading and that contact representation and 90 day/good job representation were misleading in material re- spect. Tribunal held that mis- representations were not made to public because they were made in privacy of respon- dents' office on one-to-one ba- sis. Appeal allowed. Important question that needed to be ad- dressed in determining wheth- er representation was made to public was to whom were rep- resentations made. Representa- tions here were made to various members of public who were seeking respondents' services. Just because representations were made to individuals of public in private place did not mean that they were not made to public. As communications PAGE 13 COURT DECISIONS 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. 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: Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 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. reached significant portion of public they were made to pub- lic. It did not matter that rep- resentations were made in pri- vate, one at time or that clients conveyed personal information to respondents. Representa- tions were made to significant section of public who had been invited by advertising to attend respondents' offices. Tribunal did not make any palpable and overriding error in finding that representations were materially misleading. Canada (Commissioner of Competition) v. Premier Career Management Group Corp. (Oct. 15, 2009, F.C.A., Letourneau, Sexton and Layden-Stevenson JJ.A., File No. A-476-08) Or- der No. 009/300/004 (37 pp.). Employment Insurance ENTITLEMENT Remuneration, actual or eventual, for services rendered was neces- sary for job to constitute "employ- ment" for purposes of Employment Insurance Act (Can.) This was application for judi- cial review of decision of um- pire denying applicant Crown's appeal. Respondent left job in Newfoundland in order to pursue goal of becoming commercial pilot. Respondent needed to accumulate flying hours in order to enable him to fly for commercial airlines. Respondent moved to Ontario where he provided services to S.D. without remuneration. Respondent then applied for Employment Insurance ben- efits. Respondent was initially unsuccessful but was successful on appeal. Crown's appeal was unsuccessful. Umpire found that respondent would get di- rect and eventual remunera- tion through accumulation of flying time and that employee- employer relationship existed. Application granted. Position with S.D. should not be con- sidered employment. Remu- neration, actual or eventual, for services rendered was neces- sary in order for job to consti- tute employment for purposes of Employment Insurance Act (Can.). Umpire improperly ad- dressed legal question presented to him and he committed error of law. Proper test was whether respondent expected to derive any financial benefit from S.D. and not some kind of benefit independent of S.D.. Umpire concluded that accumulation of flight time constituted ma- terial benefit to respondent without asking about nature and scope of benefit. Process of accumulating flying hours was not financial benefit, ac- tual or eventual, derived from S.D.. Umpire's decision was set aside. Respondent should be disqualified from receiving EI benefits, as volunteer position with S.D. did not constitute employment under Act. Canada (Attorney General) v. Greey (Oct. 16, 2009, F.C.A., Sharlow, Ryer and Trudel JJ.A., File No. A-76-09) Order No. 009/300/003 (17 pp.). Human Rights Legislation REMEDIES Canadian Human Rights Tribunal had no authority to award costs to successful complainant This was appeal from applica- tion judge's decision that Ca- nadian Human Rights Tribu- nal had authority to grant legal costs to successful complainant. Respondent filed human rights complaint alleging that Cana- dian Forces had discriminated against her on ground of sex, contrary to provisions of Cana- dian Human Rights Act. Tribu- nal concluded that only sexual harassment complaint was sub- stantiated and respondent was awarded $4,000. Respondent applied for legal costs. Tribunal decided that it had authority to award legal costs pursuant to s. 53(2) of Act. Respondent was awarded $47,000 for legal costs. On appeal application judge reviewed tribunal's deci- sion on standard of reasonable- ness and found that tribunal's decision was reasonable. Ap- peal allowed. Having regard to purpose of tribunal, nature of question and expertise of tribunal, appropriate standard of review was correctness. In interpreting Act goal was to seek intention of Parliament by reading words of provi- sion in context and according to grammatical and ordinary sense, harmoniously with scheme and object of Act. In many provinces human rights statutes contained provisions that were fundamentally same as s. 53(2)(c) but costs were ex- pressly addressed. There was no material difference in wording of compensatory provisions of jurisdictions where authority to award costs was not expressly granted. Parliament specifically turned mind to matter of costs with Bill C-108 but it was not enacted. There no evidence of practical necessity for exercise of power to award costs in or- der to enable tribunal to attain objects expressly prescribed by Parliament. Parliament did not intend to grant and did not OBA_LT_Jan11_10.indd 1 www.lawtimesnews.com 1/4/10 10:21:21 AM

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