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PAGE 14 CaseLawLaw FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Citizen of Syria was not denied fundamental justice Application by foreign na- tional for declaration that he had been denied fundamental justice. Foreign national was citizen of Syria who came to Canada in January 1999 using false passport. Foreign national lied about his background and concealed his travels to Afghan- istan and Tajikistan in support of jihad against Russians in Kabul and Chechnya. Foreign national successfully applied for refugee status based on alleged fear of persecution in Syria. For- eign national provided forged Canadian passport and funds to Arab Afghan associate who had crossed Canadian border il- legally. Foreign national also ar- ranged marriage of convenience for failed refugee claimant and dealt in illicit drivers' licences. Foreign national was linked to persons believed to have ex- tremist views. Security certifi- cate was issued against foreign national in October 2001. Security certificate was found to be reasonable but Supreme Court of Canada subsequently found security certificate provi- sions in Immigration and Refu- gee Protection Act (Can.) to be unconstitutional. New security certificate was issued against foreign national after Act was amended. Amendments includ- ed provisions authorizing special advocates to view information that foreign national was not permitted to see. Amendments placed limits on communica- tion between special advocates and foreign national. Canadian Security Intelligence Service had not kept original recordings of electronic intercepts or original notes regarding source inter- views. Application dismissed. New security certificate was ul- timately found to be unreason- able but foreign national had not been denied fundamental justice. Special advocates had not been hampered in perform- ing their functions by statutory restrictions on communications. Steps were taken to authorize communication where neces- sary. Process worked as it was intended by Parliament. Limits on disclosure, particularly with respect to human sources, were unavoidable. Foreign national was provided with sufficient understanding of allegations against him, and special advo- cates very effectively performed roles for which they were given statutory mandate. Case did not turn on significance of electron- ic intercepts so fact that origi- nal recordings were not kept did not have material effect on outcome. Destruction of origi- nal source interview notes by source handlers was also not of major concern given that con- temporaneous reports had been prepared. Almrei (Re) (Dec. 14, 2009, F.C., Mosley J., File No. DES- 3-08) 184 A.C.W.S. (3d) 189 (185 pp.). Intellectual Property Industrial And PATENTS Plaintiffs were granted stay of re-examination proceedings Plaintiffs sought stay of re-ex- amination process before board appointed by commissioner to review patent owned by plain- tiffs. Motion was allowed. At- torney General was added as third party to plaintiff's motion. Section 50(1) of Federal Courts Act (Can.) conferred power on court to issue stay of re-ex- amination proceedings before board when it was in interests of justice to do so. Plaintiffs would suffer irreparable harm by con- tinuation of re-examination proceedings since board would most likely ultimately invalidate patent. Plaintiffs' action would be rendered nugatory. It was in interests of justice to grant stay of re-examination proceedings pending outcome of action. Re- examination proceedings were less comprehensive as compared to infringement/invalidity ac- tion before court. Re-examina- tion process was being used by defendant as means to avoid dealing with ultimate issue re- garding source of saw tooth. Prenbec Equipment Inc. v. Timberblade Inc. (Jan. 8, 2010, F.C., de Montigny J., File No. T-1554-08) 184 A.C.W.S. (3d) 209 (24 pp.). Police DISCIPLINE Commissioner's decision was unreasonable Applicant pleaded guilty to at- tempted fraud over $5,000. Ap- plicant admitted to acting in dis- graceful manner. Board directed applicant to resign from RCMP within 14 days or be dismissed. Commissioner denied appli- cant's appeal. Expert evidence from RCMP authorized psy- chologist that there was causal connection between member's disgraceful conduct and stress created by applicant's job. Ap- March 15, 2010 • Law TiMes COURT DECISIONS ainmaker_LT_June2_08.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: 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. plication for judicial review was allowed. Commissioner's decision was unreasonable and process in which commissioner engaged was contrary to princi- ples of fairness. Board gave little weight to doctor's opinion about causal link because opinion was formed at time of testimony, which was when doctor learned of allegations against applicant. Commissioner acknowledged finding was wrong but held error did not affect outcome. Commissioner excused error by substituting own reasons why evidence was not credible. Act of substitution of opinion and commissioner's own opinion were in error. Commissioner erred in not constituting new board in face of critical error by reaching unreasonable conclu- sion in substitution of board's finding. Board and commis- sioner did not give expert op- portunity to explain findings before rejecting and substitut- ing expert opinion. Failure to put matters to expert to impugn expert's evidence was unreason- able and unfair. Commissioner's dismissal of decision of Veterans Affairs finding psychological in- jury as direct result of duties as irrelevant was perverse because it went to key elements of cause of applicant's misconduct. In- ability to confront claim of loss of commanding officer's confi- dence was unfair. Pizarro v. Canada (Attorney General) (Jan. 8, 2010, F.C., Phelan J., File No. T-574-09) 184 A.C.W.S. (3d) 243 (25 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Plaintiffs were granted certification Plaintiffs were Ontario residents who purchased shares in IMAX on Toronto Stock Exchange (TSX). Plaintiffs were suing for devaluation in their shares that they alleged was due to alleged misrepresentations. They alleged that IMAX, its Chief Executive Officers and its Chief Financial Officer at relevant time were li- able for common law damages. Plaintiffs also sought leave to pursue statutory claim under s. 138.3 of Securities Act (Ont.) against defendants and remain- ing members of board of direc- tors of IMAX at relevant time. Plaintiffs were granted certi- fication of these proceedings, including statutory claims as pleaded and certain of common www.lawtimesnews.com 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. law claims, as class proceeding. Case was appropriate for global class consisting of person who acquired securities of IMAX on TSX and on NASDAQ on or after Feb. 17, 2006 and held some or all of those securities at close of trading on Aug. 9, 2006. Silver v. IMAX Corp. (Dec. 14, 2009, Ont. S.C.J., van Rens- burg J., File No. CV-06-3257- 00) 184 A.C.W.S. (3d) 28 (67 pp.). Employment WRONGFUL DISMISSAL General manager was terminated without notice and without cause Defendant employed plaintiff as general manager. Defendant sent plaintiff e-mail indicating plaintiff was laid off effective immediately. Defendant had written plaintiff letter. Plaintiff did not press defendant on let- ter and did not confirm it was defendant's intention to resign. Plaintiff claimed plaintiff was wrongfully dismissed. Plaintiff claimed unpaid bonus. Defen- dant claimed plaintiff volun- tarily resigned and did not have bonus entitlement claimed. Plaintiff's employment was ter- minated without notice and without cause. Plaintiff was en- titled to damages of $38,000. There was no discussion at time of letter as to whether plaintiff intended to resign. Defendant never accepted letter as resig- nation. Plaintiff would have earned and was entitled to re- ceive bonus of $20,000. Plain- tiff was entitled to $3,500 for vacation pay and $16,000 on account of expenses claimed. Carmichael v. Mantis Rac- ing Inc. (Dec. 14, 2009, Ont. S.C.J., Quigley J., File No. 7256/07) 184 A.C.W.S. (3d) 93 (23 pp.). Family Law CHILD WELFARE Shortcomings of Children's Aid Society not basis for refusing to make child a Crown ward without access Application by Children's Aid Society (CAS) for order that child be made ward of Crown without access for purposes of adoption. Mother and father had low intellectual functioning and father was even function- ally illiterate. Mother had been subject of child protection pro- ceedings as child. Mother and father planned to have child but concerns arose regarding their ability to care for child. Child was apprehended at birth and had been with same foster fam- ily since then. Parents attended every scheduled access visit and made progress with basic child care but they had to rely on supervisors. Assessor indicated parents lacked basic parenting skills. Application granted. Fo- cus of case was parents' adapta- tion to their limited capacity. Parents demonstrated genuine love for child and commitment to his care but child would re- main at risk if placed in parents' care. Parents could meet basic childcare needs but they had not yet acquired sufficient skills to minimize risk of physical or emotional harm. CAS was se- verely criticized for being too one-sided and for other issues. One such issue was failure to prove factual background on which much of assessor's opin- ion was based. Other issues included delay, failing to pro- vide appropriate services even when recommended by asses- sor, and failing to prepare plan of care. Declaring proceedings nullity due to CAS's failure to prepare plan of care was not in best interests of child given de- lay in this case. Shortcomings of CAS could not serve as basis for returning child to situation in which he would be at risk. Permanency planning was more important to child's best inter- ests than continuing parents' access. Children's Aid Society of Ham- ilton v. O. (E.) (Dec. 29, 2009, Ont. S.C.J., Gordon J., File No. C-186/07) 184 A.C.W.S. (3d) 110 (85 pp.). Labour Relations COLLECTIVE AGREEMENT Dismissal of grievance based on interpretation of s. 5(2) of Employment Standards Act, 2000 (Ont.) was reasonable Employer operated chain of 38 corporately owned and op- erated retail food stores. Col- lective agreement was in place with union. On union's policy and group grievance arbitra- tor determined that employer did not violate Employment Standards Act, 2000 (Ont.) respecting holiday benefits for part-time employees when ac- tive and terminated employees received greater holiday pay under collective agreement be- cause holiday pay formula in collective agreement was more advantageous to most employ- ees than formula in Act. Arbi- trator's interpretation of s. 5(2) of act allowed "greater benefit" in employment contract, such as collective agreement, to pre- vail over statutory employment standard. Arbitrator's decision to dismiss grievance, based on

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