Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Human Rights Legislation HUMAN RIGHTS COMMISSION In fulfilling statutory responsibility to investigate complaints of discrimination, investigations must be both neutral and thorough Applicant employed in series of term positions in Federal Public Service since 1999. He claimed his involvement in whistle- blowing incident caused him to develop depression, anxiety and stress. Applicant applied as external candidate for posi- tions at Human Resources and Skills Development Canada ("HRSDC"). He was placed in "pre-qualifi ed pool" but Service Canada Management Board reclassifi ed positions and applicant no longer qualifi ed due to lack of post-secondary education. Applicant's em- ployment ultimately ended in 2008. Applicant complained to Canadian Human Rights Commission ("CHRC") that HRSDC refused to hire him from pool of candidates, or keep him employed in term position, because of disability. He withdrew initial complaint but fi led new complaint, al- leging that although qualifi ed for several positions, he was not hired because of disability. CRHC accepted investigator's recommendation to dismiss complaint on basis it appeared HRSDC did not hire applicant for reasons other than disabil- ity. Applicant challenged deci- sion, asserting numerous errors relating to alleged defi ciencies in thoroughness of investiga- tion and bias against CRHC. Application for judicial review allowed. Test for determining whether actual bias or reason- able apprehension of bias ex- ists based on what informed person, viewing matter realisti- cally and practically, and hav- ing thought matter through, would conclude. Allegation of bias serious and challenges very integrity of decision-maker whose decision in issue. Mere suspicion of bias not suffi cient. Although CHRC subject to duty of fairness, due to non- adjudicative nature of responsi- bilities, standard of impartiality required of CHRC investigator something less than required of courts. Issue is whether inves- tigator approached case with "closed mind". Fact that ap- plicant's previous complaints may have been dismissed does not establish that CHRC ap- proached complaint with "closed mind" even if, in at least one case, Commission decision tainted by procedural unfair- ness. Although investigator's inexperience caused her to seek information from HRSDC regarding staffi ng procedures, this did not evidence closed mind. Duty of CHRC to decide whether inquiry warranted. In fulfi lling statutory responsibil- ity to investigate complaints of discrimination, investiga- tions must be both neutral and thorough. Requirements must also be considered in light of CHRC's administrative and fi - nancial realities. Evidence cast serious doubt over claims of those involved in competitions that they were unaware appli- cant previously suff ered from disability. Investigator failed to come to grips with important discrepancy in record on this point and never put documents in question to witness. She seemingly just accepted denials of personnel involved in com- petitions. No evidence investi- gator followed up with witness allegations, thereby failing to investigate "obviously crucial evidence". Investigation did not meet standard of thoroughness mandated. Decision to dismiss applicant's complaint set aside and matter remitted to CHRC for re-investigation. Hughes v. Canada (Attorney General) (Aug. 23, 2010, F.C., Mactavish J., File No. T-129- 10) 192 A.C.W.S. (3d) 943 (20 pp.). Prisons INMATES' RIGHTS Denial of request to purchase thesaurus unreasonable Accused applied for judicial review of third level grievance which denied his request to purchase thesaurus. Accused was serving life sentence and submitted purchase order for paperback thesaurus at cost of $23.14. Request was denied on basis that purchase would bring accused over $1,500 per- sonal property limit, that item was not required for sex of- fender program as institution had copies which could be lent out and that thesaurus was not considered to be educational text. Accused argued thesau- rus would aid him in writing his logs and maintenance writ- ings for sex off ender program. Accused argued that although thesauruses were available in li- brary, there were time-limits on loans as well as prohibitions on marking text. Application al- November 8, 2010 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 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: 5/5/10 3:55:30 PM 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. lowed, matter referred to third level of grievance. Th esaurus was without doubt education- al. Nowhere was it stated in Commissioner's Directive that educational textbook or sup- ply was one required for course off ered at penitentiary or con- tinuing education course by correspondence approved by penitentiary. Nowhere was it stated that accused was not al- lowed to educate himself, that educational textbook was one required in course, or if oth- erwise educational textbook, it lost that status because copies were available in library. Edu- cational textbooks and supplies were not defi ned. Decision was unreasonable. MacKay v. Canada (Attorney General) (Aug. 27, 2010, F.C., Harrington J., File No. T-388- 10) 90 W.C.B. (2d) 127 (9 pp.). TAX COURT OF CANADA Taxation INCOME TAX Selling costs for old residence were not "moving expenses" Appellant carried on business of selling cosmetics in Edmon- ton. Appellant and children moved to Blenheim. Appellant claimed deductions for mov- ing expenses totalling $56,148 in 2006 taxation year. Respon- dent Minister of National Rev- enue initially assessed appel- lant's tax liability disallowing moving expenses. Respondent reassessed tax liability and al- lowed deductions of $29,364 as moving expenses. Appellant ap- pealed from reassessment. Re- spondent conceded additional $5,181.27 as moving expenses. Appeal allowed in part. Appel- lant was entitled to deduction of $1,999.50 for meals and ac- commodations while travelling. Considering distance travelled, fact that appellant was driving alone with two young children and that appellant had health problems, judge found that 10- day travel for which expense was incurred was reasonable under circumstances. Amount claimed for meals also closely approximated amount arrived at under formula used by CRA. Claim for disputed amount of temporary living expenses was disallowed consistent with s. 62(3)(c) of Income Tax Act (Can.). Selling costs for old residence were not "moving ex- penses" as understood in natu- ral and ordinary meaning of term and were not directly and www.lawtimesnews.com solely related to move. Other expenses claimed with respect to sale of old residence were not deductible either because same were not supported by receipts or incurred in preparation for move. Costs for purchase of new residence were likewise not deductible as moving expenses under s. 62(3)(f) of Act. Christian v. Canada (Sep. 14, 2010, T.C.C., Favreau J., File No. 2008-2227(IT)G) 192 A.C.W.S. (3d) 1031 (10 pp.). ONTARIO CIVIL CASES Constitutional Law CHARTER OF RIGHTS Test for capacity in s. 4 of Health Care Consent Act, 1996 (Ont.) not unconstitutionally vague Appellant, who has lengthy his- tory of involvement with men- tal health facilities and criminal justice system, remanded for assessment after being charged with uttering threat to judge of Superior Court of Justice. Consent and Capacity Board confi rmed opinion of ap- pellant's treating psychiatrist that appellant not capable of consenting to treatment with anti-psychotic and side-eff ect medication. Appellant's ap- peal to Superior Court of Jus- tice refused. Supreme Court of Canada refused leave to appeal. Meanwhile, appellant's assess- ment completed. He was found not criminally responsible and readmitted to Whitby Mental Health Centre. Once appeal proceedings ended, respondent initiated treatment with anti- psychotic drugs with substitute consent of appellant's parents. Board dismissed appellant's ap- plication to review and appeal from that decision dismissed. Appellant initiated another ap- plication for review to board. Board held that appellant un- able to appreciate reasonably foreseeable positive benefi ts of decision to consent to treat- ment and unable to appreciate reasonably foreseeable negative consequences of decision to refuse treatment. Appeal judge held that board's decision sup- ported by evidence and reason- able. Appeal dismissed. Appel- lant argued that test for capacity as set out in s. 4 of Health Care Consent Act, 1996 (Ont.), un- constitutionally vague. Test set out in s. 4, however, defi ned with reasonable precision by Supreme Court of Canada. Although diffi cult to apply in some cases, that is not the same as vagueness and does not result in arbitrary or unfair decision- making. D'Almeida (Re) (Aug. 31, 2010, Ont. C.A., Rosenberg, Goudge and Feldman JJ.A., File No. C49297) Decision at 169 A.C.W.S. (3d) 196 was af- fi rmed. 192 A.C.W.S. (3d) 992 (13 pp.). Courts ABUSE OF PROCESS Motion to set aside judgment and order struck out as abuse of process A.R. was lawyer who acted as general counsel of group of companies. In 1992, A.R. made voluntary assignment in bank- ruptcy. Trustee was appointed to take charge of A.R.'s estate. A.R. was discharged in 1996. In 1999, trustee brought action after receiving information that A.R. may have acquired shares in group of companies while A.R. was bankrupt. At con- clusion of trustee's case A.R. brought motion for non-suit which was dismissed. A.R. was excused from trial after request- ing to withdraw. In 2002 trial judge made judgment fi nding that A.R. owned shares while bankrupt and holding that A.R. and companies were obliged to account or pay to trustee divi- dends and other payments re- lating to shares. Judgment was followed by order confi rming amounts to be paid by A.R. and companies. Appeals from judg- ment and order were dismissed in 2004. In 2009, A.R. brought motion to set aside judgment and order on ground of fraud. A.R. alleged that as result of conspiracy between and acts of improper conduct on part of trustee and others, wrong and misleading evidence was pre- sented to court on which trial judge relied. Trustee brought motion to strike out A.R.'s motion for being frivolous, vexatious and abuse of pro- cess. Motion allowed. Motion constituted abuse of process. Th ere was no basis for claim that wrong and misleading evidence was placed before trial judge during trial that resulted in incorrect fi ndings by judge. Evidence did not support fraud on court by way of conspiracy and wrongdoing by trustee. Delay in bringing motion was also fatal to success of motion. Motion was commenced seven years from date of judgment and fi ve years from order. Mo- tion was bald attempt by A.R. to re-litigate issues that were fi nally determined many years ago. Motion ordered struck out. Robson (Trustee of ) v. Robson

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law