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Law Times • sepTember 21, 2009 CaseLawLaw FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Applicant failed to show that documents sought were relevant and necessary In connection with applicant's exclusion request, Canadian International Trade Tribunal issued determination finding that dumping and subsidizing in Canada of aluminum extru- sions from China had caused injury to domestic producers of like products in Canada. Ap- plicant sought judicial review of determination. It brought mo- tion for order directing tribunal to provide copies of internal reports, memoranda and other materials prepared by non-legal staff for use by tribunal in mak- ing determination. Motion dismissed. Applicant failed to show that documents sought to be produced were relevant and necessary. Request lacked prop- er specificity. Tribunal made reference in determination to documents relied upon to sup- port reasoning. Public exhibits in tribunal's record were made available to parties. Documents sought were also protected by privilege. These were consulted by or prepared for tribunal members in performance of de- liberative role. Maax Bath Inc. v. Almag Alumi- num Inc. (June 15, 2009, F.C.A., Trudel J.A., File No. A-174-09) Order No. 009/187/182 (12 pp.). Communications Law TELEPHONES Telecom fees not "user fees" as defined in s. 2 of User Fees Act (Can.) Reference for opinion on ques- tion of law with respect to appli- cation to User Fees Act (Can.) ("UFA"), to proposed changes to Telecommunications Fees Regulations, 1995 (Can.). B Inc. filed application request- ing that Canadian Radio-Tele- vision and Telecommunications Commission ("CRTC") revise Regulations in order to require telecom fees to be payable by all telecommunications service pro- viders based on each providers' total Canadian telecommuni- cations service revenue. CRTC submitted that telecom fees did not meet required elements of definition of user fees under UFA. Issue to be resolved was whether amending or replacing Regulations would amount to fixing, increasing, or expanding application or increasing dura- tion pursuant to s. 4(1) of UFA. Question was answered in negative. Telecommunications Act (Can.), sets out complex regulatory scheme, rather than regulatory processes or services contemplated by UFA. Telecom fees are not user fees as defined in s. 2 of UFA. Ref. re Amendments to the Tele- communications Fees Regulations of the Telecommunications Act (July 2, 2009, F.C.A., Richard C.J., Noel and Layden-Steven- son JJ.A., File No. A-521-08) Order No. 009/190/016 (23 pp.). Employment Insurance ENTITLEMENT Employee's conduct was not serious breach of duty Employee was dismissed by employer for going on vacation leave without receiving writ- ten approval. Employee sought employment insurance benefits. Employment Insurance Com- mission determined that em- ployee was disqualified from re- ceiving benefits because he had been dismissed for misconduct. Board of Referees dismissed appeal from Commission's de- termination. Board concluded that employee went on vaca- tion "knowing it had not been approved". Umpire allowed employee's appeal from board's decision. Attorney General brought application for judicial review to set aside Umpire's de- cision. Application dismissed. PAGE 13 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. 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 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) 841-6472, 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. Evidence showed that employee assumed that his leave had in fact been approved when he heard nothing from employer. It was therefore unreasonable for board to conclude that he went on vacation knowing that request had not been approved. Employee's conduct was not se- rious breach of duty in circum- stances of case as to constitute "misconduct" under regulations and disqualify him from receiv- ing benefits. Canada (Attorney General) v. Tompson (June 16, 2009, F.C.A., Decary, Linden and Evans JJ.A., File No. A-636-08) Order No. 009/187/180 (6 pp.). FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Federal government breached applicant's right to return to Canada Application for order requiring federal government to repatriate applicant to Canada. Applicant was citizen of Sudan who came to Canada as refugee and sub- sequently obtained Canadian citizenship. Applicant married twice in Canada and had three children who were born in Can- ada. Applicant was acquaintance of, and had voluntarily testified against, terrorist who was con- victed in United States in con- nection with plot to blow-up Los Angeles Airport. Applicant also knew another suspected terrorist who was being de- tained in Canada under security certificate. Apart from appli- cant's association with these two suspected terrorists, nothing in- dicated applicant himself had any connection with terrorism. Applicant chose to return to Sudan to visit his ailing mother and to escape alleged harass- ment by Canadian Security Intelligence Service ("CSIS"). Applicant was arrested and de- tained by Sudanese authorities, allegedly at request of CSIS. Applicant's Canadian passport expired during his detention. Applicant was interrogated by CSIS agents during his deten- tion. Applicant alleged he was tortured during his detention but he never mentioned this to Canadian officials. Federal government arranged to have applicant brought to Canada with diplomatic escort. Com- mercial airline would not allow applicant to board because his name was on international "no fly" list. Federal government would not allow applicant to fly on Ministerial or military plane. Sudanese government offered to fly applicant to Canada but subsequently withdrew offer. Applicant was again detained by Sudanese authorities and denied access to Canadian con- sular officials. United Nations Security Council committee listed applicant as associate of Al-Qaida. Federal government requested that applicant be de- listed but committee denied request without reasons. Ap- plicant was permitted to live in Canadian embassy in Sudan due to fear of further detention by Sudanese authorities. Federal government reneged on prom- ise to issue emergency passport after applicant arranged flight. Application granted. Federal government was required to issue emergency passport, ar- range transportation and escort, and ensure suspected terrorist was returned to Canada within 30 days. Federal government breached applicant's right to return to Canada. Evidence established CSIS directly or in- directly recommended to Suda- nese officials that applicant be detained. No reason was shown to doubt applicant's assertion that he was tortured but this was not brought to attention of Canadian officials for many years. Federal government was not at fault for initial failed at- tempt to repatriate applicant on commercial flight. Federal government did not have ob- ligation to arrange Ministerial or military flight at that point since circumstances were not yet extraordinary. Private char- ter flight was unrealistic due to high cost although evidence in- dicated federal government was already contemplating refusal of emergency passport. Withdraw- al of Sudanese government's of- fer to fly applicant to Canada was not shown to be related to conduct of federal government. Evidence nonetheless indicated federal government had no in- tention of issuing emergency passport. Travel ban imposed by United Nations Security Coun- cil committee did not prevent federal government from re- turning applicant to Canada. In any event, de-listing process was itself not fair so it was disingen- uous for federal government to say applicant should seek reme- dy elsewhere. Nothing indicated federal government had sought or would seek permission to ex- clude applicant from travel ban to permit him to return to Can- ada. Refusal of emergency pass- port did not have to be subject of judicial review proceeding in order for applicant to obtain constitutional relief. Refusal was not being attacked on pro- cedural grounds but rather on constitutional grounds. Refusal to issue emergency passport was sole impediment to applicant returning to Canada after he ar- ranged latest flight. Federal gov- ernment had positive obligation to issue emergency passport to applicant in absence of justifica- tion. No justification was ever offered for refusal of emergency passport. Abdelrazik v. Canada (Minister of Foreign Affairs) (June 4, 2009, F.C., Zinn J., File No. T-727- 08) Order No. 009/169/016 (109 pp.). Immigration INADMISSIBLE AND REMOVABLE CLASSES Pre-sentence custody may be part of calculation in determining whether applicant had, as matter of fact, been punished by term of imprison- ment of at least two years Applicant A.B., a permanent resident, was convicted of rob- bery and using imitation fire- arm during commission of of- fence. At A.B.'s criminal trial, a joint sentencing submission was Avoid sincere forms of flattery. Protect your brand with sound trademark advice. SMSS.COM CHARLOTTETOWN Untitled-3 1 FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 9/15/09 9:41:08 AM

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