Law Times

Law Times • sepTember 28, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Human Rights Legislation DISCRIMINATION It was not open to tribunal to conclude that refusal to train pilot constituted prima facie discrimi- nation under Quebec Charter of human rights and freedoms Bombardier operates training facilities for licensed pilots in Montreal and Dallas. Appel- lant, Canadian citizen born in Pakistan and holding Canadian and U.S. licences, registered for training in Dallas. Request for security clearance from U.S. au- thorities was denied and appel- lant unable to receive training in Dallas. Bombardier also refused to train appellant in Montreal under Canadian licence. Ap- pellant filed complaint with Commission des droits de la personne et des droits de la jeu- nesse (Commission), claiming that Bombardier's refusal con- stituted discrimination. Com- mission instituted proceedings in Human Rights Tribunal al- leging Bombardier impaired appellant's right to avail himself of services ordinarily offered to public and his right to safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to Quebec Charter of Human Rights and Freedoms. Tribunal ordered Bombardier to pay damages and to cease ap- plying or considering standards and decisions of U.S. authori- ties in national security matters when dealing with applications for training pilots under Cana- dian pilot's licences. Court of Appeal set aside tribunal's deci- sion, finding that tribunal could not find that Bombardier dis- criminated without proof that U.S. authorities' decision was itself based on ground prohib- ited under charter. Appellant's appeal dismissed. Complaint under charter involves two-step process. First, plaintiff must prove, on balance of probabili- ties: (1) distinction, exclusion or preference; (2) based on one of grounds listed; and (3) which has effect of nullifying or im- pairing right to full and equal recognition and exercise of hu- man right or freedom. If these elements are established, there is prima facie discrimination. Quebec charter does not protect right to equality per se; right to non-discrimination must nec- essarily be attached to another human right or freedom recog- nized by law. Second, defendant can justify decision or conduct on basis of exemptions provided for in applicable human rights legislation or those developed by courts. Tribunal's decision was not supported by evidence; it was unreasonable and had to be set aside. Commission did not demonstrate that appellant's ethnic or national origin played any role in U.S. authorities' un- favourable reply to his security screening request. Rather, Bom- bardier's decision to deny appel- lant's request for training was based solely on U.S. authorities' refusal to issue him a security clearance. It was not open to Tribunal to conclude that Bom- bardier's decision constituted prima facie discrimination un- der the charter. Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (Jul. 23, 2015, S.C.C., McLach- lin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Côté J., File No. 35625) Decision at 237 A.C.W.S. (3d) 181 was affirmed. 255 A.C.W.S. (3d) 79. FEDERAL COURT OF APPEAL Immigration SELECTION AND ADMISSION Effect of s. 87.5 of Immigration and Refugee Protection Act (Can.) was to render appeals moot Applicant's Visa application and those of thousands of others who had applied under federal immigrant investor program were abolished by newly enacted s. 87.5 of Immigration and Refu- gee Protection Act, which oper- ated to terminate all visa ap- plications by foreign nationals under investor or entrepreneur classes that had not met certain requirements as of specified date. Applicant brought applica- tion for judicial review, seeking order in nature of mandamus to compel Minister of Citizen- ship and Immigration to pro- cess applications for permanent residence under program. Vari- ous other applications were con- solidated for hearing with appli- cant's application. Applications were dismissed. Applicants ap- pealed. Appeals dismissed. Ap- peals were moot. Section 87.5 of act came into force and its effect was to terminate all of applica- tions under program. Effect of s. 87.5 of act was to render all of appeals moot on basis that all of applications have been ter- minated. Live controversy was whether minister could be com- pelled by mandamus to process applications that were outstand- ing at time that mandamus ap- plications were made to, and heard by, federal court judges. As enactment of s. 87.5 termi- nated all of applications under program, issue of whether min- ister could be forced to process applications was no longer live controversy. Court declined to exercise discretion to hear moot appeal, as doing so would not have practical effect. Jia v. Canada (Minister of Citi- zenship and Immigration) (Jun. 15, 2015, F.C.A., C. Michael Ryer J.A., Webb J.A., and Rennie J.A., File No. A-320-14) Decision at 242 A.C.W.S. (3d) 925 was af- firmed. 255 A.C.W.S. (3d) 176. FEDERAL COURT Crown ACTIONS AGAINST CROWN It was premature to say mat- ter was not justiciable In December 2014, Prime Min- ister was said to have publicly communicated his decision not to advise Governor General to fill existing vacancies in Senate. Applicant, who was Vancouver lawyer, considered "decision" illegal. He applied for judicial review of Prime Minister's deci- sion. Applicant sought declara- tion that Prime Minister must call upon Governor General to appoint his nominees to Sen- ate within reasonable time after vacancy occurred. Deputy At- torney General brought motion for order that application for ju- dicial review be struck at outset, before it was heard on merits. Deputy Attorney General sub- mitted it was plain and obvious that application was bereft of any chance of success. Motion dismissed. It was not plain and obvious that applicant had no chance of success. Existence and scope of any constitutional con- vention whereby Governor Gen- eral would only fill vacancies in Senate on advice of Prime Min- ister had not been established. Nor had it been established that decision was grounded on valid constitutional convention. It was premature to say matter was not justiciable. If it was merely matter of interpreting statute, and it was not plain and obvious that it was not, then certainly matter was justiciable. Alani v. Canada (Prime Minis- ter) (May. 21, 2015, F.C., Sean Harrington J., File No. T-2506- 14) 255 A.C.W.S. (3d) 99. Employment OCCUPATIONAL HEALTH AND SAFETY Open to appeals officer to find level of participation and co- operation insufficient to satisfy duties under Canada Labour Code In 2004, respondent union became collective bargain- ing agent for applicant's rural and suburban mail carriers. Shortly thereafter, complaints were made in respect of safety of delivery to rural mailboxes. In 2006, applicant engaged National Research Council to develop tool to assess safety of rural mailbox delivery and re- tained consultant to develop traffic safety assessment tool. Union was consulted in devel- opment of safety assessment tool. In September 2007, com- plaint was made to Human Re- sources and Skills Development Canada alleging that applicant had failed to include National Joint Health and Safety Com- mittee, Local Joint Health and Safety Committee or Health and Safety Representatives in onsite traffic safety assessment tool inspection of rural mail- boxes and did not provide Na- tional Joint Health and Safety Committee with complete in- formation about safety assess- ments. Health and Safety Of- ficer found that applicant had violated s. 125(1)(z.11) and s. 125(1)(z.19) of Canada Labour Code, but not ss. 137(e) or 136(5) (g). Union appealed. Appeals officer found that, in addition to directions issued by Health and Safety Officer, applicant had also violated ss. 135(7)(e) and 136(5)(g) of code by not permitting Local Joint Health and Safety Committee and Health and Safety Representa- tives to participate in assess- ments in accordance with their legal obligation to do so under code. Appeals officer concluded traffic safety assessment tool assessment was inspection and that it pertained to health and safety of employees within meaning of code. Applicant ap- plied for judicial review of deci- sion of appeals officer. Applica- tion dismissed. Physical pres- ence of Local Joint Health and Safety Committee and Health and Safety Representatives was required in onsite investigation to allow those parties to fulfill their mandate as set out in ss. 135(7)(e) and 136(5)(g) of code. Appeals officer was person au- thorized to make finding as to meaning and requirements of "participate" on basis of evi- dence submitted. Appeals offi- cer's assessment of evidence was reasonable. It was open to him to find, based on totality of evi- dence before him, that level of participation and co-operation was not sufficient to satisfy du- ties under code. Canada Post Corp. v. CUPW (May. 26, 2015, F.C., E. Heneghan J., File No. T-1498-13) 255 A.C.W.S. (3d) 111. ONTARIO CIVIL CASES Civil Procedure PLEADINGS Claim appeared to be frivolous and vexatious on its face Plaintiff claimed that defen- dants stole his newborn baby. Plaintiff made racist allegations against defendant doctor. Mat- ter was referred to court by reg- istrar pursuant to R. 2.1.01(7) of Rules of Civil Procedure. Order accordingly. Statement of claim contained no prayer for relief. On reading claim in full, it ap- peared that plaintiff 's child was taken into some form of guard- ianship and plaintiff not aware of legal basis upon which child was taken. If plaintiff 's child was kidnapped, plaintiff should be urgently speaking to police. If was apprehended at birth under Child and Family Services Act, child protection hearings were available. Claim appeared to be frivolous and vexatious on its face. Plaintiff should be sent no- tice that court now was actually considering dismissing lawsuit on grounds that it was frivolous and vexatious. Kadiri v. Harikumar (Jun. 12, 2015, Ont. S.C.J., F.L. Myers J., File No. CV-15-528680) 255 A.C.W.S. (3d) 61. Constitutional Law CHARTER OF RIGHTS Limit on voting rights of non- resident citizens violates s. 3 of Charter but saved by s. 1 Right to vote is protected by s. 3 of Canadian Charter of Rights and Freedoms. Respon- dents, Canadian citizens who lived and worked in U.S., not able to vote because they lived outside Canada for more than five years. They claimed provi- sions of Canada Elections Act denying vote to most citizens who resided outside Canada for more than five years was unconstitutional. Application judge struck down impugned provisions, finding they vio- lated s. 3 of charter. Appeal by Attorney General of Canada al- lowed. Canada's political system is based on geographically de- fined electoral districts. Citizens elect Member of Parliament to serve interests of their commu- nity. Electorate submits to laws because it has voice in making them. This is the social contract that gives laws their legitimacy. Permitting non-resident citi- zens to vote would erode social contract. Attorney General con- ceded breach of s. 3 of charter. Real issue was whether limit on voting rights of non-resident citizens is reasonable and can 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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