Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Administrative Law BOARDS AND TRIBUNALS No authority in tribunal to award legal costs Complainant filed human rights complaint alleging the Canadian Forces discriminated against her on ground of sex, contrary to provisions of Canadian Human Rights Act. Canadian Human Rights Tribunal concluded sexual harassment complaint substanti- ated and awarded complainant $4,000 for suffering in respect of feeling or self-respect. Com- plainant applied for legal costs. Tribunal decided it had author- ity to award legal costs pursuant to s. 53(2) of Act, and awarded complainant $47,000 for le- gal costs. Attorney General of Canada's application for judicial review of tribunal's costs decision unsuccessful. Federal Court of Appeal allowed Attorney Gen- eral's appeal, concluding tribunal had no authority to make costs award. Appeal to Supreme Court of Canada dismissed. Tribunal's decision to award legal costs re- viewable on standard of reason- ableness. Precise interpretative question before tribunal was whether words of s. 53(2)(c) and (d), which authorize tribunal to "compensate the victim . . . for any expenses incurred by the vic- tim as a result of the discrimina- tory practice", permit award of legal costs. Tribunal's decision they did not reasonable. While words "any expenses incurred by the victim", taken on their own, wide enough to include legal costs, when words read in statutory context, clear they can- not reasonably be interpreted as creating stand-alone category of compensation capable of sup- porting any type of disbursement causally connected to discrimina- tion. Phrase appears twice and each reference to expenses pre- ceded by specific, but different, wording. Expenses referred to in each paragraph take character from sort of compensation con- templated by surrounding words of each paragraph. Text, context and purpose of legislation clearly show that no authority in tribu- nal to award legal costs and no other reasonable interpretation of relevant provisions. Canada (Attorney General) v. Mowat (Oct. 28, 2011, S.C.C., McLachlin C.J.C., LeBel, Des- champs, Abella, Charron, Roth- stein and Cromwell JJ., File No. 33507) Decision at 312 D.L.R. (4th) 294, 182 A.C.W.S. (3d) 419 was affirmed. 207 A.C.W.S. (3d) 185 (43 pp.). Appeal NO SUBSTANTIAL WRONG Trial judge erred in failing to leave attempted murder Accused charged with second de- gree murder. Accused alleged to have shot deceased in abdomen with sawed-off shotgun. De- ceased died of a blood clot more than a month later and five days after being released from hospi- tal. One expert witness testified that blood clot could have been caused by cocaine ingestion rath- er than by complications from the gunshot wound. Trial judge declined to leave attempted mur- der as available verdict and told jury they must acquit if they had reasonable doubt on causation. Accused convicted of second de- gree murder. Majority of Court of Appeal allowed accuseds' appeal and ordered new trial. Crown's appeal dismissed. Trial judge erred in failing to leave at- tempted murder. Curative pro- viso should not be applied. Avail- ability of verdict of attempted murder may have affected jury's determination on causation is- sue. Crown's case on causation was not overwhelming. R. v. Sarrazin (Nov. 4, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33917) Decision at 90 W.C.B. (2d) 308 affirmed. 97 W.C.B. (2d) 192 (35 pp.). Murder FIRST DEGREE MURDER Charge to jury sufficiently ex- plained link between planning and deliberation Accused charged with first de- gree murder. Accused and de- ceased were involved in feud and agreed to meet in a mall parking lot. Accused gathered allies before arriving. Deceased and accused confronted each other and accused gestured for assistance before his al- lies rushed the deceased and struck him with weapons. Ac- cused struck deceased in jaw with hammer. Deceased fell into coma and died 20 days later from pneumonia. Ac- cused convicted of first degree murder. Majority of Court of Appeal allowed accused's ap- peal and substituted conviction January 9, 2012 • 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. for second degree murder on basis that jury charge wrongly left open possibility that jury would convict of first degree murder if they found that ac- cused merely planned a beat- ing but once in the execution of the beating was reckless as to whether deceased would die from injuries inflicted. Appeal allowed and conviction for first degree murder restored. Charge to jury sufficiently explained the link between planning and deliberation and the mental el- ement required for murder. R. v. Banwait (Nov. 8, 2011, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abell, Rothstein, Cromwell, Mol- daver and Karakatsanis JJ., File No. 34044) Decision at 92 W.C.B. (2d) 460 reversed. 97 W.C.B. (2d) 202 (1 p.). FEDERAL COURT OF APPEAL Administrative Law BOARDS AND TRIBUNALS Agency failed to consider and decide central issues including settlement agreement Agency determined that it could adjudicate complaint concerning noise and vibration arising from operations at Rail Yard notwithstanding that par- ties previously entered settle- ment agreement with respect to same complaint. Appeal was allowed. Where parties finally resolved complaint in settle- ment agreement, practical ef- fect of agency decision to ig- nore settlement agreement and adjudicate issues previously resolved would be to denude collaborative measures of any effect. Submission that par- ties did not present settlement agreement as final and binding agreement that would bar ad- judication of second complaint was untenable. Agency failed to consider and decide central issues by parties including ef- fect of settlement agreement. Decision was unreasonable. BNSF Railway Co. v. Canadian Transportation Agency (Sep. 28, 2011, F.C.A., Noel, Pelletier and Dawson JJ.A., File No. A-25-11) 207 A.C.W.S. (3d) 183 (15 pp.). Courts STAY OF PROCEEDINGS Application judge failed to con- www.lawtimesnews.com sider prejudice caused to alleged contemnor Both appellant and respondent sought same relief, namely that stay imposed by applica- tion judge be set aside and that matter be returned to him for decision based on record before him. While judge has inherent jurisdiction to control process before him, and inherent juris- diction to adjourn or stay pro- ceeding, that discretion must be exercised judicially, with regard to potential prejudice caused by adjournment or stay. Here, application judge failed to consider prejudice caused to alleged contemnor, which was entitled to prompt resolution of allegations against it, based on evidence parties chose to put before court. Appeal was allowed. Stay imposed by ap- plication judge was set aside and matter ordered returned to him for decision on basis of record before him. Bremsak v. P.I.P.S.C. (Sep. 20, 2011, F.C.A., Dawson, Pel- letier and Noel JJ.A., File No. A-160-11) 207 A.C.W.S. (3d) 262 (4 pp.). Intellectual Property Industrial and TRADEMARKS Clearly descriptive character of mark precluded its registration Appellant manufactures and sells golf simulators. Appellant judge dismissed appeal from Registrar of Trade-marks' deci- sion refusing to register trade- mark HIGH DEFINITION GOLF because it was clearly descriptive of character of ap- pellant's wares. Appellant judge determined that new evidence filed by appellant was neither substantial nor significant and that it would not have materi- ally affected registrar's decision, which appellant judge found to be reasonable. Appellant judge rejected appellant's contention that immediate impression conveyed by mark was preci- sion learning tool that analyzed user's swing. Rather, appellant judge found it was reasonable for registrar to conclude that mark referred to golf simulator that incorporated high defini- tion technology. Clearly de- scriptive character or quality of mark precluded its registration. Appeal was dismissed. Appel- lant had not demonstrated any error of principle or law or any palpable and overriding error warranting appellant interven- tion. Interactive Sports Technologies Inc. v. Canada (Attorney Gen- eral) (Sep. 20, 2011, F.C.A., Sharlow, Layden-Stevenson and Stratas JJ.A., File No. A-34-11) 207 A.C.W.S. (3d) 328 (4 pp.). FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Appeal tribunal did not respect procedure and parameters Applicant was candidate running for Chief in Band Council elec- tion. Applicant placed second by margin of three votes. Re-count reduced margin by two votes. Applicant launched appeal of election. Applicant challenged outcome of Band Council elec- tion. Appeal tribunal dismissed notice of appeal. Decision was signed by three individuals one of whom was not band member appointed to appeal tribunal. Application for judicial review was allowed. Appeal tribunal was "federal board, commission or other tribunal" for purposes of Federal Courts Act (Can.), and court had jurisdiction to consider application. Appeal tribunal did not respect procedure and pa- rameters set out in Band's Elec- tion Act. Appeal tribunal went beyond evidence referenced in notice of appeal and applicant's affidavit of particulars in assess- ing whether there was sufficient evidence to move to second stage of appeal process. Appeal tribunal acted improperly and breached duty to act fairly. Ap- peal tribunal should have given applicant opportunity to hear and rebut opposing evidence in context of hearing. Appeal tri- bunal exceeded jurisdiction in assessing whether there was suffi- cient evidence to warrant appeal hearing. Appeal tribunal was not improperly constituted. Refusal by one of members to endorse preliminary ruling dismissing ap- peal was strong indication that there was sufficient evidence to warrant formal hearing. Felix v. Sturgeon Lake First Nation (Oct. 6, 2011, F.C., Bedard J., File No. T-667-10) 207 A.C.W.S. (3d) 181 (25 pp.). HUMAN RIGHTS LEGISLATION HUMAN RIGHTS COMMISSION

• Cover
• IP Scam
• Grain Francas
• Focus on Insurance Law