Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Employment Insurance DECISIONS OF UMPIRE Board was in better position than umpire or court to weigh evidence and assess credibility Application for judicial re- view of decision of umpire allowing appeal of commis- sion, quashing decision of board and restoring commis- sion's initial ruling. Claimant had claimed sick benefi ts for period between May 7th and July 1, 2006, during which she was allegedly absent from work recovering from surgery. Claimant reported to com- mission that she received no earnings during this period. During its investigation com- mission received pay state- ments from her employer indicating that applicant re- turned to work on May 30, 2006. Commission conclud- ed that claimant had been overpaid benefi ts in amount of $2,010 and that she know- ingly made false or misleading representations and assessed her penalty of $1,005. Board allowed claimant's appeal on ground her testimony and that of her husband was cred- ible and employer's pay slips were shoddy and inconsistent. On further appeal umpire re- versed board's decision and restored decision of commis- sion on ground board did not give suffi cient weight to decla- ration by employer to Human Resources and Development Canada ("HRDC"). Appli- cation allowed. Board noted that employer's declaration to HRDC was inconsistent with evidence in actual pay stubs. Board considered evidence against claimant and chose to reject it on ground claimant's evidence was more consistent. Board was in better position than umpire or court to weigh evidence and assess credibility and its conclusion was reason- able. It was under no obliga- tion to give employer's decla- ration to HDRC more weight than claimant's testimony. McKinnon v. Canada (Em- ployment Insurance Commis- sion) (Sep. 28, 2010, F.C.A., Nadon, Sexton and Sharlow JJ.A., File No. A-16-10) 193 A.C.W.S. (3d) 479 (7 pp.). FEDERAL COURT Aboriginal Peoples APPLICATION OF PROVINCIAL LAW Funds of four bands were exempt from seizure Motion by respondent four First Nations, operating as M. Health Services for order set- ting aside ex parte garnishee order granted by protho- notary attaching all present and future debts owing by P. trust company to M. to sat- isfy judgment recovered by R. against M. and declaring all present and future debts ow- ing by P. to M. exempt from garnishment. M. was not in- corporated entity or society. Based on four band council resolution made in 1982 four bands resolved to make health services available to members through M.. M. maintained number of accounts at P. November 29, 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. which was located on reserve. All funds paid into these ac- counts pursuant to funding agreement with Health Can- ada were allocated for provi- sion of health programs and services to members of four bands. Issue whether funds paid monthly by Health Can- ada to M.'s accounts with P. were exempt from seizure for being situated on reserve un- der s. 89 of Indian Act (Can.), or being deemed to be on re- serve under s. 90(1)(b) of Act. Respondent contended that accounts were not subject to garnishment since M. was not separate legal entity from four bands it represented. R. contended that his employer was in fact M. which was con- trolled by board of directors and not any of four bands and that neither M. nor its board of directors was band or Indi- an within meaning of Act and as result money on deposit for M. was not exempt from garnishment. Motion allowed in part and garnishment order set aside. Funds in account were ultimately funds of four bands and consequently were exempt from seizure as result of operation of s. 89(1) of Act. As they were personal proper- ty of four bands, garnishment order issued by prothonotary must be set aside. Reiter v. Maskwacis Health Services (Sep. 8, 2010, F.C., O'Keefe J., File No. T-2072- 09) 193 A.C.W.S. (3d) 343 (10 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Decision unreasonable with respect to accommodation but reasonable with respect to alleged automatic use of disabilities as basis for higher security risk classification Application by complainant for judicial review of deci- sion of Canadian Human Rights Commission dismiss- ing complaint of discrimina- tion. Complainant was fed- eral off ender serving 21-year sentence. Complainant had mental disabilities for which he was periodically placed in segregation unit. Complain- ant's disabilities included engaging in head-banging when he experienced anxiety or frustration. Complainant had 78 head-banging inci- dents over two-month period due to his anxiety about being held in segregation. Segrega- tion Review Board refused to approve transfer until com- plainant demonstrated stable behaviour. Complainant fi led complaint of discrimination against Correctional Service of Canada ("CSC"). Com- plaint related not only to CSC's failure to accommo- date complainant's disabilities but also to CSC's alleged au- tomatic use of disabilities as basis for higher security risk classifi cation. Commission conducted investigation and concluded no further action was warranted. Application granted in part; matter re- mitted for re-determination. Standard of review was rea- sonableness since commission was determining questions of mixed fact and law. Decision was unreasonable with respect to accommodation issue but was reasonable with respect to alleged automatic use of disabilities as basis for higher security risk classifi cation. Fact that CSC had eventually developed plan for accommo- dating complainant was not basis for denying relief for pri- or conduct. Nothing indicat- ed why certain measures that were eventually used were not available at earlier time. Th is case fell within class of com- plex cases bristling with issues of credibility and confl icting evidence. Decision that no further action was warranted with respect to accommo- dation issue was not within range of acceptable outcomes. Issue of alleged automatic use of disabilities as basis for higher security risk classifi ca- tion was properly investigated and commission applied ap- propriate test to that issue. Tekano v. Canada (Attorney General) (Aug. 12, 2010, F.C., Gauthier J., File No. T-1530- 09) 193 A.C.W.S. (3d) 575 (43 pp.). ONTARIO CRIMINAL CASES Charter Of Rights RIGHT TO COUNSEL Evidence excluded because of deliberate and continued denial of accused's right to counsel Police had ample grounds to search accused's vehicle and premises for cocaine but had not yet obtained search war- rant. Police denied accused's request to speak to counsel be- fore warrant was executed. Po- lice continued to deny accused access to counsel for hours as they tried to convince accused to become informant. Police indicated that reason for de- nial was that it did not want Looking for new business leads? an enhanced listing on CANADIANLAWLIST.com works for you! Your instant connection to Canada's legal network, available in print or electronically! For a 30-day, no risk evaluation call 1.800.565.6967 Canada Law Book is a Thomson Reuters business • Prices subject to change without notice, to applicable taxes and shipping and handling. www.lawtimesnews.com CLL - 1/8pg. 5X.indd 1 11/24/10 5:13:35 PM

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