Law Times

PAGE 18 CaseLawLaw SUPREME COURT OF CANADA Labour Relations ARBITRATION Clauses of collective agreement must be reviewed by flexibly applying criteria for determining whether arbitrator or Commission des relations du travail has jurisdiction Cegep de Ste-Foy decided to withdraw employment priority from teacher. Union grieved, alleging no reasonable basis for decision within mean- ing of clause 5-1.09 of collec- tive agreement. At arbitration, union argued clause 5-1.09 in- applicable because withdrawal of employment priority con- stituted dismissal. Union asked arbitrator to apply s. 124 of An Act respecting labour standards (Que.), which requires there be good and sufficient cause for dismissal. Arbitrator held there was reasonable basis within meaning of clause 5-1.09 for withdrawal of employment priority and she did not have jurisdiction to apply s. 124 of Act. Superior Court upheld arbitrator's decision and Court of Appeal dismissed union's appeal. Appeal dismissed. Fact that s. 124 of Act is provision of public order does not mean that, in collective bargaining context, only arbitrator has ju- risdiction to enforce protection against dismissal without good and sufficient cause. Where collective agreement does not set out adequate procedure, legislature conferred exclusive responsibility for hearing com- plaints against such dismissals on Commission des relations du travail ("CRT"). Parties agreed collective agreement did not contain equivalent reme- dial procedure. In future cases, clauses of collective agreement must be reviewed by flexibly applying criteria for determin- ing whether arbitrator or CRT has jurisdiction and procedure of s. 124 therefore inapplicable. Criteria are: procedure must be mandatory; recourse must bear some similarity to recourse provided for in s. 124 of Act; and authority adjudicating dis- pute must have powers at least equivalent to those of forum provided for in Act. Syndicat des professeurs du Cegep de Ste-Foy v. Quebec (Procureur general) (July 29, 2010, S.C.C., McLachlin C.J.C., Binnie, LeB- el, Deschamps, Fish, Abella, Charron, Rothstein and Crom- well JJ., File No. 32773) Deci- sion at 173 A.C.W.S. (3d) 156 was affirmed. 191 A.C.W.S. (3d) 256 (14 pp.). FEDERAL COURT OF APPEAL Administrative Law RULE MAKING Commissioner of Correctional Service of Canada had legislative authority to adopt directive implementing total smoking ban at all federal correctional facilities Commissioner of Correctional Service of Canada ("CSC") is- sued directive implementing total smoking ban at all federal correctional facilities except for aboriginal religious and spiritu- al practices. Policy of directive "[T]o enhance health and well- ness by eliminating exposure to second-hand smoke at all feder- al correctional facilities". Com- missioner decided that ban on indoor smoking insufficient. Enforcement of indoor ban proved challenging and CSC employees complained expo- sure to second hand smoking in workplace constituted dan- ger. Judicial review judge held that commissioner went too far in enacting total ban on smok- ing because directive did not respect fundamental principles in Corrections and Conditional Release Act (Can.) ("CCRA"). He concluded that difficul- ties enforcing indoor smoking ban did not justify decision to prohibit smoking outdoors. He granted declaratory judgment that directive, to extent it pro- hibited inmates from smoking outdoors within perimeters of correctional facility, null, void and contrary to CCRA. Appeal allowed. Commissioner not prohibited from issuing direc- tives simply because CCRA au- thorizes Governor in Council to make regulations in regard to same matters. CSC's duty to "take all reasonable steps to en- sure that ... the living and work- ing conditions of inmates and the working conditions of staff members are safe, healthful". Given nature of commissioner's duties and broad discretion he has been given, Parliament did not intend to prevent commis- sioner from issuing directives. Scheme of Act inconsistent with interpretation that would limit commissioner's ability to issue directives and does not preclude overlap. Commission- er had legislative authority to adopt directive and, more par- sepTember 27, 2010 • Law Times COURT DECISIONS 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: 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. ticularly, to enact directive so as to ensure that living and work- ing conditions of inmates and employees safe and healthful. Judge erred in declaring direc- tive invalid. Judge not entitled to substitute his view for that of commissioner as to whether total ban on smoking should be implemented in federal cor- rectional facilities. Not open to court to determine wisdom of delegated legislation or to assess its validity on basis of court's policy preferences. Mercier v. Canada (Correc- tional Service) (June 21, 2010, F.C.A., Nadon, Pelletier and Trudel JJ.A., File No. A-442- 09) Decision at 191 A.C.W.S. (3d) 130 was reversed. 191 A.C.W.S. (3d) 102 (46 pp.). Intellectual Property Industrial And PATENTS Judge erred in concluding that patent was invalid for obviousness Appellant owned 334 pat- ent relating to bale processors, machines designed to disinte- grate or break-up large bales of straw, hay or other crop mate- rial ("Bale King"). Respondents also manufactured and sold bale processors ("Balebuster"). Balebuster design was inspired by Bale King and respondent knew of 334 patent when de- veloping design for Balebuster. Both models of Balebuster were alleged to have infringed 334 patent. Judge dismissed appellant's claim of infringe- ment, allowed counterclaim for declaration that claims 1, 2 and 4 of patent were invalid for obviousness and granted costs to respondents. It was open to judge to accept opin- ion of respondent's expert Dr. P. on construction of 334 pat- ent, and in particular to adopt his interpretation of disputed words and phrases in claim 1. Dr. P.'s interpretation of patent was based on context of entire specification as it would be un- derstood by person skilled in art at relevant time, and it was soundly reasoned. There was no basis for concluding that con- struction of patent that he pro- posed was wrong in law. Further, there was no basis upon which court may intervene in judge's conclusion that there was no infringement with respect to discharge opening. Judge re- lied primarily on evidence of Dr. P. to effect that there was substantial difference in way Balebuster discharged shredded material from that which was claimed in 334 patent. How- ever, judge erred in concluding that 334 patent was invalid for www.lawtimesnews.com obviousness. Patent disclosed combination invention. It was not fair to person claiming to have invented combination in- vention to break combination down into its parts and find that, because each part was well known, combination was nec- essarily obvious. Given state of art at relevant time, skilled but uninventive person would have not have been led directly and without difficulty to solution taught by 334 patent. Appeal allowed on that issue. Appel- lants' claim was dismissed and respondents' counterclaim was dismissed. Bridgeview Manufacturing Inc. v. 931409 Alberta Ltd. (July 14, 2010, F.C.A., Nadon, Sharlow and Trudel JJ.A., File No. A-86-09) Decision at 185 A.C.W.S. (3d) 450, 82 C.P.R. (4th) 109 was affirmed in part. 191 A.C.W.S. (3d) 235 (33 pp.). FEDERAL COURT Arbitration JURISDICTION Dispute concerning enforceability of limited class action waiver was matter to be decided by court Plaintiffs brought class pro- ceeding. Plaintiffs challenged defendants' distribution system as pyramid scheme which did not comply with Competition Act (Can.). Defendants sought to dismiss or permanently stay action on basis Federal Court had no jurisdiction because matter was subject to compul- sory binding arbitration under terms of arbitration agreement subscribed to by parties. Mo- tion was dismissed. Agreement conferred jurisdiction on courts over class action claims and over enforceability or applicability of limited class action waiver. Amway Rules of Conduct in- cluded these types of disputes from arbitration process. Dis- pute concerned enforceability of limited class action waiver which according to Amway Rules of Conduct were matters to be decided by court. Rhodes v. Compagnie Amway Canada (July 2, 2010, F.C., Mainville J., File No. T-1754- 09) 191 A.C.W.S. (3d) 25 (14 pp.). Employment PUBLIC SERVICE Respondent offered acceptable explanation for applicant's different scores on analytical thinking exercise Applicant was CRA employee. Applicant wished to compete for position. Applicant received level one score on analytical thinking exercise. Applicant requested individual feedback. CRA designate refused to change assessment score. Defi- nition of analytical thinking was revised including change in assessment criterion. Decision reviewer denied applicant's re- quest for recourse on level one score. Applicant was screened out of selection process because applicant did not achieve level two competency on analytical thinking. Selection Board re- fused recourse. Applicant was retested. Applicant submitted same exercise as before. Appli- cant achieved level two score. CRA affirmed board's position. Applications for judicial re- view were dismissed. Decision reviewer correctly identified ground of review as arbitrari- ness; determined applicant was evaluated in accordance with valid criteria applied to all can- didates; and provided rational explanation of level one score. Decision review was reasonable. Respondent offered accept- able explanation for applicant's different scores on analytical thinking exercise. Selection Board erred in reason for deny- ing reconsideration, but recon- sideration was moot because applicant did not succeed in ju- dicial review of decision review- er and there was no mechanism by which applicant's subsequent level two assessment score could be applied retroactively. Wolch v. Canada (Revenue Agency) (July 14, 2010, F.C., Mandamin J., File No. T-1122- 09; T-1222-09) 191 A.C.W.S. (3d) 144 (17 pp.). ONTARIO CIVIL CASES Contempt Of Court GROUNDS Defendant found in contempt of disclosure order Plaintiffs brought action against defendant, alleging conspiracy to assist in piracy of satellite pro- gramming. Defendant ordered to, inter alia, disclose informa- tion known or accessible to her pertaining to locations of access cards and receivers and contact information for those who may be in possession of servers and technology. Plaintiffs brought motion for finding that defen- dant in contempt of order. Mo- tion allowed. No dispute that defendant did not disclose all in- formation required of her. Order

• Cover
• Libel Woes
• Legal Circus
• Focus On Business/Competition Law