Law Times

Law TiMes • March 12, 2012 Minnedosa to find full-time sum- mer employment and save on liv- ing expenses. When he returned to Winnipeg as planned in August 2009, he claimed employment insurance benefits. Employment Insurance Commission denied benefits. Board allowed respon- dent's appeal from the commis- sion's decision. Umpire dismissed Crown's appeal. Crown brought present application for judicial review. Application allowed. Board acknowledged legal test for "just cause" but did not examine facts of respondent's case in relation to rel- evant principles of law. Rather than applying the no reasonable alterna- tive test board considered whether respondent's conduct was reason- able in the circumstances and con- cluded that his choice qualified as reasonable behaviour. Umpire erred when he failed to address applicable law regarding just cause for leav- ing employment. While respon- dent may have had good personal cause to leave employment he did not have just cause for leaving his employment within the meaning of Employment Insurance Act (Can.). Canada (Attorney General) v. Graham (Nov. 16, 2011, F.C.A., Evans, Pelletier and Layden- Stevenson JJ.A., File No. A-429-10) 209 A.C.W.S. (3d) 566 (7 pp.). Social Welfare CANADA PENSION PLAN Applicant not only had capacity to work at relevant time but did work Pension Appeals Board denied applicants claim for disability ben- efits under the Canada Pension Plan. Board was not satisfied that applicant's disability was severe within the meaning of s. 42(2)(a)(i) of the Plan at the end of the mini- mum qualifying period for bene- fits. Applicant brought application for judicial review. Application dismissed. Applicant did not meet burden of proving that he was unable to regularly pursue any substantially gainful occupation. On the evidence it was reasonable for board to conclude that appli- cant not only had the capacity to work at relevant time but did work. Profitability of applicant's business ventures not necessarily an indica- tor of his capacity to do work. Kiriakidis v. Canada (Attorney General) (Nov. 17, 2011, F.C.A., Nadon, Sharlow and Dawson JJ.A., File No. A-156-11) 209 A.C.W.S. (3d) 719 (7 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Accused unable to understand nature or object of proceedings Appeal by accused from finding that he was not criminally respon- sible on account of mental disor- der. Finding as made after accused pleaded guilty to one count of crim- inal harassment and two counts of failing to comply with his recog- nizance of bail. Appeal dismissed. Medical evidence addressed accused's inability to understand nature or object of proceedings, his inability to understand possible consequences of proceedings and his inability to communicate with ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW Single judge could dismiss application for delay if case was clear Motion by respondents to dismiss application for judicial review on grounds of delay. Following death of a chiropractic patient, an inquest was held and jury reached verdict and made recommendations in counsel. Trial judge was alert to and he addressed his mind to issue of fitness. He was entitled to rely upon medical evidence. Accused was represented by counsel at trial and neither Crown or defence raised any challenge or expressed any concern about accused's fitness to stand trial. There was no error in law by judge and there was no miscarriage of justice. R. v. Krivicic (Nov. 14, 2011, Ont. C.A., Blair, Juriansz JJ.A. and Pepall J. (ad hoc), File No. C50605) 98 W.C.B. (2d) 279 (15 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Arresting officer's decision to place accused in cell before breathalyzer tests unjustified Trial of accused for drinking and driving offences. Accused was bartender. When she completed her shift she remained in bar and she consumed four glasses of wine before she drove home. Police offi- cer pulled her over and he detect- ed small hint of alcohol on her breath. He had her take screening device test and he was surprised when she failed. She was not hand- cuffed during trip to police sta- tion. At station she was placed in cell and she went through pro- cess of removing her bra, which was standard procedure. She had breathalyzer test and she gave her samples at 1214 a.m. and 1240 a.m.. She was then returned to her cell to await completion of paper- work. Documents were complet- ed by 200 a.m.. Accused was not released until 500 a.m. because arresting officer had practice of holding charged impaired drivers until they could make good deci- sions. Officer did not explain to accused why she was being held in cell. Accused acquitted. Arresting officer's decision to place accused in cell before breathalyzer tests were conducted was unjustified and it violated accused's right under s. 9 of Canadian Charter of Rights and Freedoms. Based on accused's rational, polite and co-operative behaviour demand that she surrender her bra violated her s. 8 Charter rights. Because this took place before breathalyzer testing occurred it had tempo- ral and causal connection to test results. It was not reasonable that 26 minutes elapsed between tak- ing of first and second samples and it violated statutory requirement that samples were to be taken as soon as practicable. Evidence was excluded because of improper police conduct in this matter. R. v. Bouchard (Nov. 24, 2011, Ont. C.J., Fraser J., File No. 110260) 98 W.C.B. (2d) 318 (8 pp.). CASELAW 2004. Applicant association and college applied for judicial review but had not yet perfected applica- tions. Applicants argued single judge lacked jurisdiction to dismiss application for delay and delay was justified by difficulty obtain- ing transcripts of inquest. Motion allowed. Case law established sin- gle judge could dismiss an appli- cation for delay if case was clear. Delay in this case was extremely significant and inordinate. While the applicants had some difficulty in obtaining transcripts, they had received all transcripts of pro- ceedings before jury by 2007 and respondent's counsel was very co- operative in helping them obtain evidence. By 2008, applicants were fully aware they would not be able to obtain transcripts of submissions made in absence of jury as there was no requirement for recording in such circumstances. From that point on, there was no reasonable explanation for the continued delay. Allowing the application to proceed after delay of this magnitude was prejudicial to family of deceased, parties to proceedings, treating chi- ropractor and public interest. Canadian Chiropractic Assn. v. McLellan (Nov. 9, 2011, Ont. S.C.J. (Div. Ct.), Harvison Young J., File No. 606/04) 209 A.C.W.S. (3d) 551 (11 pp.). Conflict Of Laws JURISDICTION Plaintiff had no evidence establishing publication in Ontario Defendant acted on recommen- dation of EC to declare plain- tiff personae non grata within Olympic Movement and to rec- ommend members of Olympic family not grant plaintiff accredi- tation or having dealings with plaintiff. Defendant posted deci- sion on website. Plaintiff brought action claiming defamation, breach of duty of good faith, and abuse of process. Defendants brought motion to stay action on ground court had no jurisdiction. Motion was allowed. There was no evidence in record of motion that alleged torts were committed in Ontario. There was no evidence that allegedly defamatory material posted on website was ever viewed by anyone other than plaintiff. Plaintiff conceded plaintiff had no evidence establishing publication in Ontario. There was no evidence to suggest alleged misconduct with respect to abuse of process took place in Ontario. Impugned conduct took place in Athens, Greece. Plaintiff failed to establish real and substantial connection between defendants and Ontario or between plaintiff 's claim and Ontario. Consideration of fairness pointed in favour of refusing juris- diction. It was international case. Swiss court would not recognize and enforce Ontario judgment in circumstances. Court would decline jurisdiction on basis that there was clearly more convenient forum for determination of dis- pute between parties. Most con- venient forum was Switzerland. There was no justification for exercise of residual discretion to assume jurisdiction under doc- trine of forum of necessity. Elfarnawani v. International Olympic Committee (Nov. 15, 2011, Ont. S.C.J., Campbell J., www.lawtimesnews.com File No. CV-10-00411056) 209 A.C.W.S. (3d) 539 (19 pp.). Equity ESTOPPEL Issues determined by Quebec Superior Court and could not be re-litigated Plaintiff claimed damages for defendant's alleged mismanage- ment. Plaintiff sought interlocu- tory and permanent injunctive relief to prevent defendant from using and controlling internet domain names related to plain- tiff. Defendant brought action against plaintiff in Quebec based on same allegations of fact and issues arising out of parties' rela- tionship which formed basis of plaintiff 's Ontario action against defendant. Defendant brought motion to stay action on ground claim had no real and substantial connection to Ontario. Defendant argued Quebec was more conve- nient forum for hearing action. Defendant argued issues were already determined in favour of defendant by Quebec Superior Court and could not be re-litigated by plaintiff. Motion was allowed. Action was stayed. Requirements for doctrine of issue estoppel were met. Same jurisdictions questions were decided against plaintiff by Quebec Superior Court. Quebec Superior Court's decision was final. Plaintiff and defendant were only parties to both actions and motion on issue of jurisdiction. Evidence showed real and substan- tial connection between defen- dant's action and Quebec Superior Court. Two actions were identi- cal and could not co-exist without creating multiplicity of proceed- ings likely resulting in inconsis- tent findings. Defendant did not attorn to jurisdiction of Ontario. There was no basis to decline to apply doctrine of issue estoppel. There was no real and substantial connection between Ontario and plaintiff 's claim. Quebec was more appropriate forum in which to try subject matter of action. Jafarzadehahmadsargoorabi v. Sabet (Nov. 10, 2011, Ont. S.C.J., Roberts J., File No. CV-11-420609) 209 A.C.W.S. (3d) 540 (12 pp.). FEDERAL COURT Employment PUBLIC SERVICE E-mails never formally entered into record and could not be considered evidence Applicants sought judicial review decision of Public Service Staffing Tribunal dismissing applicants' complaint of abuse of authority in internal appointment process. Tribunal found that there was no evidence that applicants were improperly screened and con- cluded that there was no abuse of authority. Judicial review was dismissed. Consolidation of appli- cants' complaints did not breach procedural fairness as they were based on same internal appoint- ment and factual background and were substantially similar. There was no breach of procedural fair- ness in tribunal's refusal to order further production of documents which it had already ordered pro- PAGE 15 duced. Applicants failed to demon- strate breach of procedural fairness in tribunal's handling of witnesses or requests for summonses. There was no evidence before court of any behaviour of tribunal mem- ber that would meet established threshold for demonstrating bias. There was no error in confining complaint to examination of indi- vidual appointment process for subject position of manager and not expanding their complaint and have tribunal examine all staffing appointments in Ontario region of Health Canada from April 2004 to date of hearing. Tribunal did not allow applicants to expand their complaint to include these issues of systemic racism and discrimina- tion. This decision was correct as these issues were beyond tribunal's mandate. Applicants made no sub- missions, presented no evidence and called no witnesses before tri- bunal, despite bearing burden of proving their complaint. Although applicants sent tribunal over one hundred e-mails prior to date of hearing, these e-mails were never formally entered into record and could therefore not be considered evidence. Tribunal based its deci- sion on evidence before it, which was entirely presented by respon- dent. Tribunal decision assessed procedure in creating essential qualifications for position as well as decision to eliminate appli- cants' candidacy at screening stage. Given that respondent's evidence was not contradicted, tribunal's decision was reasonable. Alexander v. Canada (Attorney General) (Nov. 8, 2011, F.C., O'Keefe J., File No. T-674-09) Application for judicial review from 96 C.L.A.S. 507 was affirmed. 209 A.C.W.S. (3d) 561 (28 pp.). Immigration PERSON IN NEED OF PROTECTION Board committed serious legal error in equating "serious efforts" with "adequacy" Applicant family was Roma citizens of Czech Republic who claimed refugee status in Canada. Applicants cited numerous instances of being attacked by "skinheads". Refugee Board found that applicants had been discrimi- nated against because they were Roma. However, board found that this discrimination did not amount to persecution because it was not sustained or systemic violation of their basic human rights that demonstrated failure of state protection. Because they failed to rebut presumption of state protection, applicants were not Convention Refugees. Board also found that applicants were not persons in need of protection. Application for judicial review was allowed. Board commit- ted serious legal error in equat- ing "serious efforts" with "ade- quacy" and unreasonably failed to address evidence before it on issue of whether, in practice, those efforts have resulted in adequate protection for applicants. Matter was ordered returned for recon- sideration. Koky v. Canada (Minister of Citizenship and Immigration) (Dec. 2, 2011, F.C., Russell J., File No. IMM-2577-11) 209 A.C.W.S. (3d) 644 (29 pp.). LT

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