Law Times

Law Times • June 1, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT OF APPEAL Human Rights Legislation APPEALS No duty to accommodate if employer legitimately unaware of employee's disability In January 2009, applicant was terminated from employment for time theft. Applicant's griev- ance was dismissed. In August 2009, applicant obtained psy- chiatric report that indicated he had bipolar affective disorder. Applicant requested that em- ployer reinstate him based on psychiatric report but employer refused in November 2009. In January 2010 applicant filed complaint under Canadian Hu- man Rights Act alleging that former employer discriminated against him on basis of mental disability, race and national or ethnic origin in terminating employment. Human Rights Commission dismissed com- plaint on basis that there did not appear to be any link be- tween alleged discriminatory acts and any prohibited ground of discrimination. Applicant requested commission reopen complaint. Report recom- mended applicant's complaint be dismissed. Commission dis- missed complaint because it was filed out of time and it was vexatious. Applicant applied for judicial review. Federal Court judge found that applicant had not been denied procedural fairness and that commission's decisions were reasonable. Ap- plication for judicial review was dismissed. Applicant appealed. Appeal dismissed. There was no duty to accommodate if em- ployer was legitimately unaware of employee's disability. Appli- cant's employment was termi- nated in January 2009 and that was last act that was related to employment. To find that last act was refusal of employer to reinstate applicant in November 2009 would mean that employee would have control over com- mencement of limitation period by choosing when to submit re- quest for reinstatement. It was reasonable in circumstances for commission to determine that, for purposes of Act, refusal of employer to reinstate applicant as employee should not be con- sidered as possible discrimi- natory act because it occurred after his employment was ter- minated. Commission's finding that last alleged discriminatory act occurred in January 2009 when applicant was dismissed was reasonable. Commission's decision not to extend time for filing complaint was reasonable. Khaper v. Air Canada (Apr. 16, 2015, F.C.A., Eleanor R. Daw- son J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-138-14) Decision at 239 A.C.W.S. (3d) 984 was affirmed. 251 A.C.W.S. (3d) 646. Taxation TAX CREDITS No errors in judge's find- ings regarding taxpayer's claim for donation credit Taxpayer claimed charitable donation tax credit in 2006 taxation year for $10,250 she gave to church by tucking enve- lopes containing $100 or $200 in pew or donation tray every week. Church's charitable sta- tus was revoked in May 2009. Minister of National Revenue assessed taxpayer in respect of 2006 income tax return, disal- lowing claimed donation. Tax- payer's appeal was dismissed. Judge held that taxpayer failed to prove she donated $10,250 to church. Judge found that taxpayer failed to provide bank records to corroborate cash withdrawals. Judge found that taxpayer's prior charitable his- tory was minimal, and expected she would follow up better given that alleged donations equaled about 13 per cent of taxpayer's after tax income. Judge held that receipt did not conform with re- quirements prescribed by Regu- lation 3501 of Income Tax Reg- ulations (Can.). Receipt did not contain statement that it was of- ficial receipt for income tax pur- poses, date on which receipt was issued, or locality or place where receipt was issued. Taxpayer ap- pealed. Appeal dismissed. Tax- payer did not show any palpable and overriding errors in judge's findings regarding lack of truth- fulness of taxpayer's claim, and missing elements in receipt. Sowa v. R. (Apr. 21, 2015, F.C.A., Nadon J.A., Eleanor R. Dawson J.A., and Boivin J.A., File No. A-143-14) Decision at 235 A.C.W.S. (3d) 1127 was af- firmed. 251 A.C.W.S. (3d) 711. FEDERAL COURT Immigration EXCLUSION AND EXPULSION Hearing not precluded by removal of claimant from Canada Refugee claimants were Roma citizens of Hungary who had made unsuccessful refugee claim. Claimants' motion for stay of removal was dismissed and claimants departed Canada and returned to Hungary in November 2014. Claimants had brought application for judicial review of denial of refugee claim. Minister contended that s. 96 of Immigration and Refugee Protection Act (Can.), required that refugee claimants be out- side their country of nationality, and s. 97 of Act required that claimants be physically pres- ent in Canada, and therefore application for judicial review should be dismissed on ground that it had become moot. Mo- tion to dismiss on ground of mootness denied; application to be set down for hearing on its merits. Parliament did not intend to preclude court and board from hearing claim for refugee protection after person had been removed from Can- ada pursuant to s. 48(2) of Act. In absence of express statutory language rights conferred on refugee claimants by Act were not rendered nugatory by per- formance of Minister's duty to execute removal order as soon as reasonably practicable. Even if matter had become moot, this was appropriate case in which court should exercise its discre- tion to deal with matter on its merits. As interlocutory judg- ment concerned jurisdiction of Refugee Protection Division to reconsider decision after appli- cant for refugee protection has been removed from Canada was separate, divisible, judicial act, question was certified: Is ap- plication for judicial review of decision of Refugee Protection Division moot where individual who was subject of decision has involuntarily returned to his or her country of nationality, and, if yes, should court normally re- fuse to exercise its discretion to hear it?. Molnar v. Canada (Minister of Citizenship and Immigration) (Mar. 23, 2015, F.C., Simon Fothergill J., File No. IMM- 7227-13) 251 A.C.W.S. (3d) 651. ONTARIO CIVIL CASES Appeal FRESH EVIDENCE Fresh evidence could have been obtained through rea- sonable diligence Appellant noted former solicitor in default. Trial judge found so- licitor had not served appellant well but concluded appellant failed to establish any damages arising from dismissal of her two actions solicitor was han- dling. Appellant sought to ad- duce fresh evidence. Appellant appealed. Appeal allowed. Trial judge provided no explanation for why appellant should not have judgment for retainer paid to former solicitor and appel- lant was entitled to that amount. There was nothing in record or in fresh evidence to establish any other damages resulting from solicitor's actions. Motion for fresh evidence was dismissed because fresh evidence could have been obtained through reasonable diligence before trial. Roberge v. Munro (Mar. 26, 2015, Ont. C.A., Robert J. Sharpe J.A., S.E. Pepall J.A., and K. van Rensburg J.A., File No. CA C58831) 251 A.C.W.S. (3d) 546. Bankruptcy And Insolvency COURTS AND PROCEDURE Chapter 11 proceedings under United States Bankruptcy Code constituted foreign proceeding for purposes of Companies' Creditors Arrangement Act (Can.) On January 15, 2015, CEOC Inc and certain of its subsid- iaries commenced voluntary reorganization by filing peti- tions for relief in United States bankruptcy court in Illinois. On January 12, 2015, however, competing involuntary petition in respect of CEOC Inc, but not subsidiaries, had been filed in United States bankruptcy court in Delaware. By order of court in Delaware, Illinois proceeding stayed pending determination of appropriate venue. Mean- while, CEOC Inc authorized CWE Ltd, indirect subsidiary incorporated in Ontario, who operated casino on behalf of Ontario Lottery and Gaming cASELAW 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. 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