Law Times

Page 18 September 21, 2015 • Law timeS www.lawtimesnews.com FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP Review board gave detailed reasons for concluding pro- posed development not likely to have significant adverse impact on environment First Nation comprised of Ab- original peoples who claimed treaty rights and rights under s. 35 of Constitution Act, 1982 in certain area. Individual re- spondent held mineral claim in area and he submitted land use permit application to re- spondent land and water board to conduct diamond explora- tion project that included up to 10 drill-holds over five-year period in area. Land and wa- ter board referred proposed development to review board for environmental assessment. Review board concluded that proposed development was not likely to have any significant adverse impact on environ- ment or to be cause of signifi- cant public concern and en- vironmental impact review of proposed development was not required. First Nation applied for judicial review. Application was dismissed. First Nation ap- pealed. Appeal dismissed. De- cision that proposed develop- ment was unlikely to have any significant impact on environ- ment was reasonable. Review board did not rely on measures set out in decision in unre- lated proposed development to resolve cumulative impacts crisis in area. Review board gave detailed reasons for con- cluding that proposed devel- opment was not likely to have significant adverse impact on environment. Review board's findings of fact were reasonable open on evidentiary record and provided intelligible, trans- parent and justifiable basis for conclusion about adverse im- pact on environment. Decision that proposed development was not cause of significant public concern was reasonable. Review board did not rely on measures it previously recom- mended in order to conclude that there was no basis for pub- lic concern. Findings of review board were reasonably open to it on evidentiary record. Crown met its duty to consult. Level of consultation was proportionate to nature and extent that pro- posed development was likely to infringe aboriginal or treaty rights claim by First Nation. Consultation was adequate. Yellowknives Dene First Nation v. Canada (Minister of Aborigi- nal Affairs and Northern Devel- opment) (Jun. 19, 2015, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and Johanne Trudel J.A., File No. A-411-13) Decision at 234 A.C.W.S. (3d) 658 was affirmed. 255 A.C.W.S. (3d) 801. Civil Procedure CLASS ACTIONS Judge erred by not includ- ing certain claims as part of class proceeding Plaintiffs were individuals who applied for and received stu- dent loans through Canada Student Loans Programs from 2002 to 2006. Personal in- formation of individuals was stored on hard drive that had been kept in filing cabinet at of- fices of Human Resources and Skills Development Canada. Hard drive was lost. Plaintiffs commenced action against defendant on various grounds and brought motion to cer- tify action as class proceeding. Federal Court judge granted motion but only in relation to certain claims. Federal Court judge did not include claims of negligence and breach of confi- dence as part of class proceed- ing. Plaintiffs appealed. Appeal allowed. Federal Court judge evaluated affidavit evidence in concluding that plaintiffs had not suffered any compensable damages. However, determina- tion of whether plaintiffs had reasonable cause of action in negligence or breach of confi- dence should have been made based on facts as pled and not on evidence adduced in sup- port of motion. Federal Court judge erred in law in evaluating merits of claims of negligence and breach of confidence based on evidence submitted by par- ties and in failing to address claims for special damages for costs incurred in preventing identity theft and out-of-pocket expenses in analysis. Plaintiffs claimed they suffered damages and they identified nature of damages they were claiming. There was no basis to not in- clude claims of negligence and breach of confidence as part of class proceeding. Condon v. R. (Jul. 6, 2015, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-165-14) Decision at 239 A.C.W.S. (3d) 28 was reversed. 255 A.C.W.S. (3d) 836. Human Rights Legislation APPEALS Issues in grievance were essentially same as those raised in complaints Applicant was lawyer at De- partment of Justice from March 1999 to May 2001. Ap- plicant developed chronic fa- tigue syndrome and she was granted disability leave. In 2005, applicant and depart- ment began to discuss possible return to work. Following as- sessment, physician recom- mended gradual return to full- time work over period of seven months but applicant objected to aspects of recommenda- tion. Department made formal proposal for return to work on fixed date in accordance with physician's recommenda- tion but applicant refused to agree to dates because she felt she would be putting health at risk. In May 2008, department made final offer for return to work. Applicant rejected offer and filed grievances and com- plaints under Canadian Hu- man Rights Act. Grievance of- ficer found no violation of act but upheld grievance in part by allowing further period to allow discussions to take place concerning return to work plan. Union declined to re- fer grievance to adjudication. Commission then investigated complaints. Investigator issued report recommending that complaints be dismissed under s. 41(1)(d) of act. Commission accepted investigator's rec- ommendation and dismissed complaints. Applicant applied for judicial review. Federal Court determined that com- mission's decision was reason- able and dismissed application. Applicant appealed. Appeal dismissed. Commission's deci- sion was within its margin of appreciation and could not be set aside. Grievance proceed- ings were adequate recourse. Grievance officer had jurisdic- tion to decide human rights issues under Public Service Labour Relations Act and she had ability to grant adequate relief. Issues in grievance were essentially same as those raised in complaints. Applicant had opportunity to know case and to meet it. Brevity of commis- sion's reasons did not create concerns about transparency or intelligibility. Reasons were sufficient for applicant to un- derstand how commission came to its decision. There was no basis to interfere with com- mission's decision on basis of fairness. Process was fair. In- vestigator was neutral and was sufficiently thorough. Bergeron v. Canada (Attorney General) (Jul. 7, 2015, F.C.A., Johanne Trudel J.A., David Stratas J.A., and Wyman W. Webb J.A., File No. A-141-13) Decision at 226 A.C.W.S. (3d) 203 was affirmed. 255 A.C.W.S. (3d) 955. FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Section 110(2)(d.1) of Immigration and Refugee Protection Act violates s. 15(1) of Charter Section 110(2)(d.1) of the Immi- gration and Refugee Protection Act denies access to Refugee Appeal Division for all refu- gee claimants from any coun- try designated by Minister of Citizenship and Immigration. Applicants challenged consti- tutionality of s. 110(2)(d.1) and mechanism for selecting which countries to designate, arguing that denying refugee claimants from designated countries of origin an appeal to refugee ap- peal division violates ss. 7 and 15(1) of Canadian Charter of Rights and Freedoms. Primary applicants are refugee claim- ants from designated coun- tries of origin. Appeal division rejected applicants' claims on basis there was adequate state protection. Constitutional challenge brought by way of ap- peal to appeal division. Appeal division dismissed appeals on basis it did not have jurisdic- tion by virtue of s. 110(2)(d.1). Applicants applied for judicial review. One of principal goals of designated country of ori- gin regime was to deter abuse while preserving right of eli- gible refugee claimants to have fair hearing. Designated coun- try of origin claimants face several differential procedures, including delayed work per- mit eligibility and pre-removal risk assessment, different time limits, lack of appeal to ap- peal division, removal orders coming into force sooner and no automatic stay of removal when seeking judicial review. Differential treatment is clearly distinction on basis of national origin as it is made without re- gard to personal characteristics of claimants or whether that designated country of origin is actually safe for them; it is discriminatory on its face and serves to further marginalize, prejudice and stereotype refu- gee claimants from designated countries of origin. Introduc- tion of s. 110(2)(d.1) has de- prived refugee claimants from designated countries of origin of substantive equality. Access to appeal division is substantial benefit being denied to claim- ants from designated countries of origin. Section 110(2)(d.1) of act violates s. 15(1) of Char- ter. Denial of appeal to appeal division for designated coun- try of origin claimant is not reasonable limit prescribed by law that can be demonstrably justified in free and democratic society. While denial of appeal to appeal division by desig- nated country of origin refu- gee claimants is prescribed by law and Canada had pressing and substantial objective in ef- fecting immigration reform, s. 110(2)(d.1) is not minimally im- pairing. Respondents did not prove that absolute bar is least drastic means by which it could satisfy objectives. Denying ap- peal to appeal division to some claimants based on country of origin is serious impairment of right to equality. Section 110(2) (d.1) inconsistent with s. 15(1) of Charter and has no force and effect. Z. (Y.) v. Canada (Minister of Citizenship and Immigra- tion) (Jul. 23, 2015, F.C., Keith M. Boswell J., File No. IMM- 3700-13, IMM-5940-14) 255 A.C.W.S. (3d) 958. ONTARIO CIVIL CASES Aboriginal Peoples CROWN RELATIONSHIP Federal government was required to revise reports relating to Indian residential schools settlement agreement Federal government and other entities settled class actions with respect to harm aris- ing from Indian residential schools. Settlement terms were specified in Indian residential schools settlement agreement. Agreement provided for com- mon experience payment for all students who were residents at schools. Agreement pro- vided independent assessment process for claims for com- pensation for particular acts of abuse. Agreement required federal government to search for and report on information relating to students and abus- ers at school to facilitate inde- pendent assessment process. Federal government gathered information relating to par- ticular incident at school A only after being ordered to do so. Federal government failed to provide adequate reports of information obtained. Certain students who had attended school A and school H and were claiming compensation under independent assessment process brought request for di- rections as to whether federal government had complied with its report writing and informa- tion sharing obligations under agreement. Request granted in part. Federal government was required to revise reports relating to agreement so as to 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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