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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Employment PUBLIC SERVICE Requirement to post bargaining unit vacancies would negate Senate's hiring policy Parliamentary Employment and Staff Relations Act (Can.), establishes special regime gov- erning labour relations of em- ployees who work within House of Commons and Senate. Sec- tion 55(2) prohibits board from including in arbitral award any matter dealing with standards, procedures or processes govern- ing appointment, promotion or transfer of employees. Staffi ng and hiring governed by employ- er policies rather than collective agreements. Public Service Alli- ance of Canada ("PSAC") cer- tifi ed to act as bargaining agent for "Operational Group" of Senate. Bargaining negotiations for renewal of collective agree- ment for this group did not lead to new collective agreement and PSAC sought binding arbitra- tion under Act. Public Service Labour Relations Board issued arbitral award. PSAC took is- sue with only one determina- tion which concerned posting of bargaining unit vacancies. PSAC proposed to include new provision in collective agree- ment which would require Senate to post bargaining unit vacancies. Senate objected on basis that s. 55(2) of Act pro- hibits such proposal from be- ing considered. Board held it did not have jurisdiction to consider such proposal. PSAC's application for judicial review dismissed. Applicable standard of review is reasonableness. Re- quirement to post bargaining unit vacancies would negate Senate's current hiring policy allowing for appointments to proceed without any advertise- ment in appropriate circum- stances. Board acted reasonably in concluding it did not have jurisdiction. Lack of detailed reasons result of Act and pecu- liarities associated with binding arbitral awards. Act limits ex- tent of reasons required. Board focused on relevant factors and evidence, considered represen- tations of parties and did not impede intelligent judicial re- view. P.S.A.C. v. Senate of Canada (June 28, 2011, F.C.A., Blais C.J., Sharlow and Mainville JJ.A., File No. A-301-10) 205 A.C.W.S. (3d) 126 (17 pp.). FEDERAL COURT Aboriginal Peoples HUNTING AND FISHING RIGHTS Premature to consider motion to strike out application prior to completion of record Motion by Minister for order to strike out applicant's ap- plication for judicial review of continuing course of conduct by Minister to issue salmon fi shing licenses to First Nations communities under Economic Opportunities Fisheries pro- gram of Aboriginal Fisheries Strategy that permit them to sell fi sh they catch. Applicant was self-represented. Motion dismissed. It could not be said that application for judicial re- view clearly fell short of mini- mal threshold of being so be- reft of any possibility of success that it should be struck out be- cause case was without merit. It was premature to consider motion to strike out applica- tion prior to completion of re- cord and clear identifi cation of issues. Applicant's submissions on current record were impre- cise and variable. Eidsvik v. Canada (Minister of Fisheries and Oceans) (July 27, 2011, F.C., Mandamin J., File No. T-1352-10) 205 A.C.W.S. (3d) 1 (23 pp.). Administrative Law NATURAL JUSTICE Discovery of modified complaint form did not violate applicant's right to natural justice Adjudicator allowed complaint of unjust dismissal made by re- spondent and ordered respon- dent be compensated for loss of pay for period indicated in de- cision. Application for judicial review was dismissed. Adjudi- cator had jurisdiction to hear and decide complaint. None of jurisdictional challenges raised by applicant at hearing of complaint were justifi ed. Th ere was no breach of rules of natural justice or procedural fairness. Adjudicator rightly found that discovery of modi- fi ed complaint form at hearing did not violate applicant's right to natural justice and proce- dural fairness. Applicant was given adjournment. Th ere was no evidence applicant suff ered prejudice from admission of two complaint forms. Decision on merits was reasonable. Burnt Church (Esgenooopetitj) First Nation v. Bartibogue (July 11, 2011, F.C., Martineau OCTOBER 31, 2011 • LAW TIMES Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 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: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. J., File No. T-1006-10) 205 A.C.W.S. (3d) 9 (16 pp.). Courts PUBLICITY Tribunal failed to provide reasons why total ban on broadcasting necessary Application for judicial review of refusal by Canadian Human Rights Tribunal to allow APTN television access to its proceed- ings. Assembly of First Nations and First Nations Child and Family Caring Society fi led human rights complaint alleg- ing that inequitable funding of child welfare services on First Nations Reserves amounted to discrimination on basis of race and national and ethnic origin. Hearing of complaint open to public. Members of media al- lowed to attend, take notes and report on hearing. Tape recorders and video cameras not allowed in hearing room. Application for judicial review allowed and decision set aside. Redetermination deferred until judicial determination concerning jurisdictional issue had been defi nitely resolved. Decision made without re- gard to material before tribu- nal. APTN proposal suggested some 15 operating Guidelines concerning television coverage. Tribunal's decision did not re- fer to proposal or provide any reasons why Guidelines were inadequate to manage any of potential negative impacts of fi lming. Tribunal failed to pro- vide reasons why total ban on broadcasting necessary. Aboriginal Peoples Television Network v. Canadian Human Rights Commission (June 30, 2011, F.C., Lutfy C.J., File No. T-1008-10) 205 A.C.W.S. (3d) 121 (15 pp.). Immigration INADMISSIBLE AND REMOVABLE CLASSES Duty of fairness not displaced by desire to close file Application for permanent resident visa was rejected. Ap- plicant's two dependent chil- dren were determined to be in- admissible because conditions might reasonably be expected to cause excessive demands on Canadian health or social services. Application for judi- cial review was allowed. Only information medical offi cer had to support social services fi ndings was diagnosis of mu- copolysaccharidosis manifest- ing in mental impairment and largely undefi ned level of de- pendency. Level of dependency was described in general terms. www.lawtimesnews.com 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. Detailed specialists' evalua- tions were necessary. Duty of fairness was not displaced by desire to close fi le or for administrative convenience. Th ere were serious problems with offi cer's fairness letter in letter's failure to clearly inform applicants about what was re- quired to address outstanding concerns. Offi cer did not send declaration of ability and in- tent to applicants to be signed and returned. It was unfair to have deemed family inadmis- sible for failing to present clear, feasible and concrete care plan when no such plan was re- quested. Offi cer's assessment of principal applicant's fi nancial means was defi cient. Firouz-Abadi v. Canada (Min- ister of Citizenship and Im- migration) (July 7, 2011, F.C., Barnes J., File No. IMM-6544- 10) 205 A.C.W.S. (3d) 190 (13 pp.). TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX No actions taken by directors to prevent failure to remit HST Appeal by directors from as- sessments by Minister under Excise Tax Act (Can.). First Na- tion was preferred shareholder of corporation. Restaurant on reserve was corporation's only asset. At board meeting, band presented directors with pro- posal to put restaurant into bankruptcy. Subsequent to board meeting, two directors worked with company to de- velop recovery plan. Two di- rectors resigned as directors in February 2007, and restaurant was closed in November 2007. Minister assessed each of two directors, under s. 323 of Part IX of Act, $34,584.84 in re- spect of failure of corporation to remit net tax in respect of reporting periods ending Sep- tember 30th and December 31 2006, interest and penalties. Two directors fi led notices of objection to assessments. Min- ister confi rmed assessments. Appeals dismissed. Two direc- tors were jointly and severally, or solidarily, liable under s. 323(1) for corporation's failure to satisfy its remittance obliga- tions under Act. No evidence of actions taken by two direc- tors to prevent failure by cor- poration to remit HST was provided. It was clear that fi rst director was aware of corpora- tion's failure to remit its net tax on statutory fi ling dates. First director should have taken some positive steps to ensure that corporation made HST remittances in timely fashion. First director had not estab- lished, on balance of probabili- ties, that he exercised required degree of care, diligence and skill to prevent failure to remit. It was clear that second direc- tor was aware that corporation was suff ering from fi nancial diffi culties at end of 2005. Sec- ond director took no positive steps to assure himself that cor- poration was remitting HST. Second director could not avail himself of due diligence de- fence provided in s. 323(3). Power v. Canada (July 27, 2011, T.C.C., D'Arcy J., File No. 2010-1670(GST)I; 2010- 1671(GST)I) 205 A.C.W.S. (3d) 272 (18 pp.). ONTARIO CIVIL CASES Appeal FRESH EVIDENCE Proposed fresh evidence did not sup- port reasonable inference of perjury Plaintiff was awarded $4,355 plus interest. Defendants ap- pealed. Defendants sought to introduce fresh evidence. Mo- tion to adduce fresh evidence was dismissed. Submission that proposed fresh evidence established perjury or fraud was rejected. Proposed fresh evidence did not support rea- sonable inference of perjury or fraud in light of other evidence on motion. Appeal was dis- missed. Th ere was no basis on which to interfere with fi nding that there was oral agreement. Appellant did not show error of law or error of legal prin- ciple. Appellant did not show palpable and overriding error in fi ndings of fact or of mixed fact and law. Boghossian Legal Professional Corp. v. Permacharts Inc. (June 17, 2011, Ont. S.C.J. (Div. Ct.), Aston J., File No. DC- 09-547-0000) 205 A.C.W.S. (3d) 11 (5 pp.). Civil Procedure TRIAL Questionable evidence had any probative value Plaintiff brought negligence action for motor vehicle colli- sion. Jury verdict found defen- dants were not liable. Jury fi xed damages. Plaintiff brought mo- tion for mistrial because defen- dants failed to make disclosure

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