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Law Times • January 26, 2009 CaseLawLaw FEDERAL COURT OF APPEAL Civil Procedure PLEADINGS Claim against insurers was within jurisdiction of provincial superior courts C. appealed from two decisions striking claims against all of de- fendants. Claim against various persons and entities on disability insurance policy alleged chain of conspiracy to shield insurers by depriving C. of his constitution- ally protected right to fair and im- partial hearing of his claim against insurers for damages. Effect of two decisions was to strike claims against all defendants, putting end to C.'s action. Claim against in- surers was essentially one sound- ing in property and civil rights and therefore within jurisdiction of provincial superior courts. Fur- ther, there was no statutory grant of jurisdiction to Federal Court by Parliament giving its jurisdiction over tortuous conduct of judges. Claim against Canadian Judicial Council must also be struck as premature and disclosed no rea- sonable cause of action. Crowe v. Canada (Supreme Court) (Oct. 7, 2008, F.C.A., Nadon, Sexton and Pelletier JJ.A., File No. A-495-07; A-509-07; A-549- 07; A-550-07) Appeal from 162 A.C.W.S. (3d) 548, 55 C.C.L.I. (4th) 100, 319 F.T.R. 203 dis- missed. Order No. 008/316/036 (17 pp.). Employment PUBLIC SERVICE Decision of Appeals Officer overturning Health and Safety Officer's decision was upheld on review Respondent rural and suburban mail carrier with CPC refused to work, alleging ergonomic difficul- ties with CPC's change in method of delivering mail. Work refusal was investigated by Health and Safety Officer, who found that ergonomic hazard posed no "dan- ger" within meaning of s. 122(1) of Canada Labour Code. Officer did not consider any issues of traf- fic safety. Appeals Officer over- turned Health and Safety Officer's decision, concluding that appel- lant faced danger due to both er- gonomic and traffic safety hazards. Application for judicial review was allowed in part. Application judge held that there was no rea- son to interfere with decision that ergonomic hazard represented danger, but overturned ruling on traffic safety as CPC was denied procedural fairness. Applicable standard of review on appeal was reasonableness. Appeals Officer's finding was acceptable outcome which was defensible with regard to both circumstances of this case and law. Further, Appeals Offi- cer's conclusion that danger ex- isted despite respondent's ability to alter her movements was open to him as matter of fact and law. Finally, it was open to application judge on evidence to find CPC had been denied opportunity to address safety issue. Canada Post Corp. v. Pollard (Oct. 10, 2008, F.C.A., Decary, Sex- ton and Sharlow JJ.A., File No. A-53-08) Appeal and cross-appeal from 169 A.C.W.S. (3d) 575, 321 F.T.R. 284 dismissed. Order No. 008/316/020 (17 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Unchallenged conclusion that complaint did not warrant inquiry justified decision to accept recommendation of investigator Appellant was employee of On- tario Human Rights Commis- sion, African Canadian man, Ja- maican born, who wore his hair in dreadlocks. Applicant brought complaint based on treatment he received at airport upon re- turning from Jamaican vacation by three inspectors employed by Canadian Border Services Agen- cy. Application judge dismissed judicial review of commission's decision dismissing complaint. PAGE 17 COURT DECISIONS ainmaker_LT_June2_08.indd 1 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 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. Decision of commission adopt- ing recommendation of investi- gator should not be quashed on basis of statement in investigator's report indicating that he may have misapprehended principle of human rights law. Reference by investigator was unnecessary to his decision. Essential finding of investigator was factual. Inves- tigator concluded that complaint did not warrant inquiry because evidence did not establish that, in fact, appellant was subject to un- usual treatment. That conclusion was not challenged and by itself justified commission's decision to accept recommendation of in- vestigator to dismiss complaint. That was sufficient basis for con- cluding that application judge made no error in dismissing ap- plication for judicial review. Richards v. Canada (Minister of Public Safety and Emergency Pre- pardness) (Nov. 3, 2008, F.C.A., Decary, Sexton and Sharlow JJ.A., File No. A-534-07) Appeal from 161 A.C.W.S. (3d) Taxation INCOME TAX No error in dismissal of appeal from disallowance of business loss claim Tax Court Judge did not err in dismissing appeal from Minis- ter's decision to disallow appel- lants' claim of business loss for 2001 taxation year, allowing instead business investment loss put for money into golf course development. Judge embarked on thorough fact-driven analy- sis before deciding that appel- lants' lending of money to C. for lending on to G. and P. was not part-and-parcel of adventure in nature of trade, thereby con- cluding that appellants did not meet their burden. No palpable and overriding error made justi- fying intervention. Casey v. Canada (Oct. 6, 2008, F.C.A., Linden, Evans and Trudel JJ.A., File No. A-536-07; A-537- 07) Appeal from 161 A.C.W.S. (3d) 343 dismissed. Order No. 008/316/035 (9 pp.). 616, 317 F.T.R. 222 dismissed. Order No. 008/329/009 (16 pp.). FEDERAL COURT Parole DAY PAROLE Section 128(4) of Corrections and Conditional Release Act (Can.) not constitutionally invalid Application by a prison inmate for a declaration that s. 128(4) of the Corrections and Conditional Release Act (Can.) was invalid on the ground that it violated ss. 7, 9 and 15 of the Canadian Charter of Rights and Freedoms. Applicant was a Romanian citizen who had been in Canada since 1991. He was granted Convention refugee status and became a permanent resident. In 2001 he was convicted of 80 counts of fraud. Deporta- tion order was issued against him on grounds of serious criminality. Because of his refugee status he could not be removed because an opinion had not been issued that he was a danger to the public. In 2008 the applicant was convicted of one count of fraud over $5,000. Applicant was placed in a medium security federal correctional facil- ity. He was informed that a dan- ger opinion would be sought so that he could be deported once he was granted parole. Applicant was eligible for an Unescorted Tem- porary Absence and day parole. Because of the deportation order and the application of s. 128(4) he was ineligible for release until his full parole eligibility date. Appli- cant claimed he was being treated differently in relation to day pa- role eligibility because he was not a Canadian citizen. He believed he was the subject of discrimina- tion. He also believed he was be- ing denied an opportunity to work towards his rehabilitation because of his identity. Application dis- missed. Section 128(4) was part of a legislative scheme that postponed day parole eligibility, for offenders subject to removal, until full pa- role eligibility. In doing so it set a minimum period of time that such offenders had to spend in custody. Section 128(4) prevented offend- ers who were subject to removal from serving sentences that were significantly shorter than the sen- tences of Canadians. In doing so it preserved the deterrence factor that formed an essential part of the sentencing regime. It also denied the offender access to Canadian territory which was a purpose enu- merated by the immigration legis- lation, and prevented the offender from taking advantage of the crim- inal sentence to gain access to Ca- nadian society. Regarding s. 9 the impugned legislation did not func- tion arbitrarily or in a way that was not in accordance with the principles of fundamental justice. Regarding s. 7 fundamental justice was observed when the applicant was tried, convicted and sentenced for his offences. There was noth- ing in s. 128(4) that offended the principles of fundamental justice in either a procedural or substan- tive way. Immigration review to determine if the applicant was a danger to the public and flight risk, had no relevance as to why the applicant lost eligibility to day parole under s. 128(4). Even if the applicant was not a danger to the public or a flight risk, this did not mean that his day parole should not be postponed in order to meet the objectives of the Act and the policy considerations embodied in s. 128(4). Section 128(4) was sub- ject to review under s. 15 because the differentiation at issue was a difference in eligibility for day pa- role, not a difference to remain in Canada which would have been immune from review under s. 6 of the Charter. Appropriate compar- ator group was equivalent Canadi- an offenders who were not subject to deportation and who remained eligible for day parole. Applicant fell into an analogous category under s. 15 because he was a non- citizen. However, the applicant did not demonstrate how the differen- tial treatment between citizens and non-citizens, brought about by the suspension of day parole eligibility under s. 128(4) constituted dis- crimination within s. 15 against people in his situation whose re- moval from Canada was actively being pursued by the immigration When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S StewartMcK_LT_Jan26_09.indd 1 www.lawtimesnews.com 1/20/09 11:42:32 AM