Law Times

Law Times • May 4, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Crown gave First Nation notice of mine expansion project and afforded opportunity for consultation Project was proposed expansion of open pit oil-sands mine. Project would be carried out on tradition- al lands of Athabasca Chipewyan First Nation (ACFN) Crown invited the ACFN to express its concerns to joint review panel charged with conducting project's environmental assessment. Min- ister decided project was justified subject to conditions. ACFN as- serted Crown made decision in breach of its duties to consult and accommodate ACFN. ACFN as- serted Crown rushed through consultation process and issued decision before completing con- sultation. ACFN asserted pro- cess lacked transparency because Crown kept from ACFN its ad- vice to Cabinet, proposed project conditions and information it received. ACFN asserted Crown breached its commitments to CFN during consultation pro- cess. Applicant sought judicial review. Application dismissed. Crown gave ACFN notice and afforded ACFN opportunity for consultation. ACFN participated throughout six-year process. Crown seriously considered views of ACFN. Measures Crown took to accommodate ACFN corrobo- rated its serious consideration of ACFN's concerns. Crown made changes that addressed concerns ACFN raised during consulta- tion. Crown accommodated ACFN's concerns by imposing long list of conditions. Duty to accommodate did not guarantee Aboriginal groups everything that they wished to obtain. Fed- eral-provincial distribution of powers limited Crown's ability to accommodate the ACFN because lands and mineral rights belonged to province of Alberta. Consulta- tion process was not rushed. Re- cord did not reveal lack of trans- parency, but showed that Crown repeatedly shared information, replied to ACFN's correspondent, met ACFN's representative and made policy decisions in light of ACFN's concerns. Applicant was not entitled to disclosure of Minis- ter's advice to Cabinet and Crown did not have to justify Cabinet's decisions on project. Claim that Crown created and deceived rea- sonable expectation that panel review process would heavily in- form Crown's decision-making for project was rejected. Record did not support contention that Crown was insufficiently respon- sive to ACFN's concerns. Record did not reveal insufficient atten- tion by Crown to project's cumu- lative effects. Evidence established fact that ACFN will continue to be consulted in future. Athabasca Chipewyan First Na- tion v. Canada (Minister of the Environment) (Dec. 9, 2014, F.C., Danièle Tremblay-Lamer J., File No. T-13-14) 250 A.C.W.S. (3d) 541. Administrative Law DUTY TO ACT FAIRLY Decision to revoke applicant's security clearance was quashed Applicant had worked for ground handling company that operated out of Lester B. Pearson Interna- tional Airport in Toronto for past 16 years. She also held part-time job from October 2012 to April 2014 as ramp agent. Both posi- tions required applicant to hold valid transportation security clearance, which allowed her to access restricted areas at airport. On November 8, 2013, Chief of Security Screening Programs for Transport Canada wrote to ap- plicant saying that she was being investigated for associating with leader of drug importation ring at airport and that she herself was suspect in criminal investigation for drug importation. Applicant denied involvement in any drug smuggling. On April 24, 2014, applicant was advised of decision to cancel her security clearance. Applicant was immediately ter- minated from her part-time job. Applicant applied for judicial review of decision to cancel her security clearance. Application granted. Respondent failed to dis- charge requirement of procedural fairness. Applicant had lost her employment on basis of allega- tions that sometime perhaps be- tween 2007 and 2009, or perhaps subsequent to 2009 and 2013, she associated, in some unspecified way, with certain unspecified individual in major drug impor- tation scheme at airport. Other than minor charge many years ago for theft of children's Tylenol from drug store, applicant had no criminal record. She had never been interviewed in respect of al- leged criminal activity relied on in decision letter. She had never been charged in respect of those matters. Applicant was unable to respond to case against her, as she knew neither time, date, nor precise activity which gave rise to revocation. Advisory Body's con- clusion from absence of transac- tions in applicant's bank account consistent with drug trafficking that applicant was remunerated by cut of drugs themselves was, in absence of further information, neither transparent nor rational. Decision to revoke applicant's se- curity clearance was quashed. Meyler v. Canada (Attorney Gen- eral) (Mar. 20, 2015, F.C., Donald J. Rennie J., File No. T-1197-14) 250 A.C.W.S. (3d) 542. Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Investigator adopted unreason- able definition of 'vexatious' Applicant went on sick leave with- out pay and never returned to workplace. Employer demanded that applicant either return to work or retire on medical grounds. Employed informed applicant she would otherwise be dismissed for medical incapacity. Applicant responded that she preferred to stay on long-term disability until she could receive medical clear- ance to return to work. Employer renewed request. Applicant indi- cated she would apply for medi- cal retirement under duress. Ap- plicant's first, second and third level grievances were denied. Ap- plicant filed complaint against employer with Canadian Human Rights Commission. Commis- sion dismissed applicant's com- plaint as vexatious because al- legations were already addressed by alternate decision-maker. Ap- plicant accused investigator of failing to consider submissions she made before he wrote his re- port and commission of failing to consider submissions she made as response to that report. Applicant asserted commission did not pro- vide adequate reasons. Applicant sought judicial review. Applica- tion granted. Commission's deci- sion was procedurally unfair and unreasonable. Applicant made out allegations of procedural un- fairness. Investigator's report that also stood as commission's rea- sons showed that her submissions were ignored. Investigators acting on behalf of commission had to conduct thorough investigations and thoroughness requirement extended to commission when complainants made reply sub- missions to investigator's reports that were reviewed by commis- sion before it made final decision. Requirement of thoroughness that survived filing of investiga- tor's report ensured that every submission made by complain- ant was given consideration it deserved. Investigator committed several reviewable errors when he concluded that complaint was vexatious and they rendered de- cision unreasonable. Investigator adopted unreasonable definition of "vexatious" and applied it to applicant's complaint. It was im- possible to reconcile finding that applicant did not file complaint for improper reasons with deter- mination that it was vexatious. Three grievance replies did not decide issue of whether policy was discriminatory and there was no decision to complaint to which commission was entitled to defer. There was no evidence that com- mission gave thought to exercis- ing discretion to decide whether to refer complaint to tribunal. Carroll v. Canada (Attorney Gen- eral) (Mar. 6, 2015, F.C., Richard G. Mosley J., File No. T-1420-14) 250 A.C.W.S. (3d) 658. TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Amount of assessments reduced to amount of relevant Federal Court certificates Director was controlling mind of three companies who did en- gineering work for developer. Developer did not pay its bills on timely basis, resulting in three companies taking collection ac- tions, and eventually executing lien. Minister of National Rev- enue assessed director under s. 323 of Excise Tax Act (Can.), for Goods and Services Tax (GST) that company TE Inc. failed to remit and $86,222.48 in GST that company 306 Canada Inc. (TM) failed to remit. Director appealed. Appeals allowed in part. Amount of assessments reduced to amount of relevant Federal Court cer- tificates. Certificate that Minister registered with Federal Court of Canada for TM's unremitted net GST was $11,896.19 less than amount assessed. 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