Law Times

Law Times • march 19, 2012 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. FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Procedural fairness not observed when removing respondent as chief Respondent applied for judicial review after being removed Chief of Peepeekisis First Nation and prohibited from holding office for ten years. Judge allowed applica- tion and ordered, among other things, that respondent be rein- stated as chief. Judge concluded that there was insufficient evi- dence to establish that either of two purported councils satisfied criteria of Election Act (Can.), or custom. Consequently, appellants' council, responsible for removal and prohibition, was not properly constituted. Even if it were oth- erwise, judge found that proce- dural fairness and natural justice were not observed. Appeal was dismissed. Judge did not err in concluding that, on record, nei- ther of proposed councils was properly constituted. Judge found that procedural fairness and natu- ral justice were not observed with respect to removal of respondent as chief. This was sufficient, in and of itself, to set aside deci- sion, unless it could be established that it was custom of First Nation not to observe those principles. After examining procedural pro- tections contained in Act, judge concluded that no lesser standard was acceptable when proposing removal of duly elected chief. Judge specifically identified num- ber of breaches. Appellants had not taken issue with any of these findings. On this basis alone, appellants' appeal must fail. Bellegarde v. Poitras (Nov. 18, 2011, F.C.A., Evans, Pelletier and Layden-Stevenson JJ.A., File No. A-450-09) Decision at 180 A.C.W.S. (3d) 755 was affirmed. 209 A.C.W.S. (3d) 745 (12 pp.). FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Belief that cannabis was tree of life did not make consumption of marijuana religious practice Application by marijuana user for judicial review of decision of Minister of Health refusing to issue statutory exemption permit- ting marijuana user to produce and possess marijuana. Marijuana user was member of "Church of the Universe" and believed can- nabis was "tree of life". Marijuana user claimed he smoked mari- juana in religious way. Controlled Drugs and Substances Act (Can.), prohibited production and pos- session of marijuana in absence of exemption. Marijuana user unsuccessfully applied to Minister for exemption permitting mari- juana user to produce and possess enough marijuana to allow him to smoke or otherwise consume seven grams per day. Marijuana user contended Act and Minister's decision violated his Charter rights, particularly freedom of religion. Application dismissed. Standard of review was reason- ableness in light of discretionary nature of decision and complex weighing of interests. Minister exercised his discretion in rea- sonable manner with no resulting violation of Canadian Charter of Rights and Freedoms. Marijuana user failed to establish his practice of smoking or otherwise consum- ing seven grams of marijuana per day had any nexus with religion. Marijuana user's belief that can- nabis was tree of life did not in itself make his consumption of marijuana religious practice. Marijuana user's evidence dis- closed no connection between his ongoing marijuana use and any comprehensive system of religion that would have met definition of religion set out by Supreme Court of Canada. Beliefs and practices of adherents of other religions were not relevant. Evidence sug- gested marijuana user's ongoing marijuana use was part of long- standing lifestyle that he wished to continue pursuing without possibility of interference by state. No matter how strong marijuana user's desire to do so might have been, such lifestyle choice was not protected by right to freedom of religion under s. 2(a) of Charter. Any prima facie breach of Charter would have been demonstrably justifiable under s. 1 of Charter. Bennett v. Canada (Attorney General) (Nov. 15, 2011, F.C., Shore J., File No. T-1073-09) 209 A.C.W.S. (3d) 819 (54 pp.). Environmental Law POLLUTION Special review of herbicide could co-exist with re-evaluation Application by environmental researcher for judicial review of decision of Minister of Health declining to initiate special review of health or environmental risks of glyphosate products pursuant to s. 17 of Pest Control Products Act (Can.). Glyphosate was popu- lar herbicide registered under Act for many uses in many locations. Glyphosate products generally contained polyoxyethylene tallow amines ("POEA's") that allowed glyphosate to spread more evenly on waxy surface of leaves. Forests in environmental research- er's community were aerially sprayed with glyphosate product. Researcher was concerned about adverse health and envi- ronmental effects from POEA's. Researcher made request under These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. s. 17 of Act for special review of glyphosate products contain- ing POEA's. Researcher submit- ted various studies suggesting glyphosate products posed vari- ous health and environmental risks that had not been previ- ously known. Minister delegated responsibility for evaluating such requests to Pest Management Regulatory Agency at Health Canada. Agency determined spe- cial review pursuant to s. 17 of Act was not warranted. Agency noted that glyphosate products were scheduled for re-evaluation pursuant to s. 16 of Act in any event. Application granted; mat- ter remitted for reconsideration. Standard of review was correct- ness for Minister's legal interpre- tation of her duties and reason- ableness for Minister's exercise of discretion. Minister had properly taken into consideration all avail- able evidence when determining evidence did not raise any con- cerns that there was unaccept- able risk. Nonetheless, Minister erred in relying on scheduled re-evaluation pursuant to s. 16 of Act as basis for not initiating special review pursuant to s. 17 of Act. Minister had misinterpreted mandatory wording of s. 17 of Act. If conditions in s. 17 of Act were satisfied, then special review was required regardless of whether re- evaluation was to be conducted pursuant to s. 16 of Act. Minister further erred in misinterpreting test under s. 17 of Act. Section 17 of Act required only reason- able grounds to believe there was risk of unacceptable harm. In this case, there was uncer- tainty regarding risk of harm to amphibians inhabiting ephem- eral wetlands that were subject to aerial spraying of glyphosate products in silviculture. Special review would have been required if precautionary principle had been applied. Failure to evalu- ate this particular risk properly rendered decision unreasonable. Fact that re-evaluation under s. 16 of Act had already commenced did not render application moot. Special review pursuant to s. 17 of Act was mandatory if crite- ria were satisfied. Special review could co-exist with re-evaluation. Researcher was awarded costs to be calculated under Tariff B, Column III at mid-point num- ber of units allowed under that column. Wier v. Canada (Minister of Health) (Nov. 21, 2011, F.C., Kelen J., File No. T-1604-09) 209 A.C.W.S. (3d) 863 (44 pp.). Immigration PERSON IN NEED OF PROTECTION Comments made by board stereo- typical, and thus unreasonable Application for judicial review decision by board refusing appli- cant's refugee claim to be deemed Convention Refugee or person www.lawtimesnews.com in need of protection. Applicant, aged 25, was citizen of Jordan. In 1993, applicant was granted per- manent resident status in Canada as dependant of his father who was admitted in entrepreneur category. Applicant's father did not comply with terms and con- ditions pertaining to permanent residence in Canada. Applicant lost his status. In 2008, removal order was issued against appli- cant. Applicant alleged that he was homosexual, and would be at risk if returned to Jordan. Application granted. Matter was referred back for redetermina- tion by differently constituted panel. Comments made by board were stereotypical, and thus unreasonable. Board's insistence that individual needs to go to gay village to be gay was not rea- sonable. Board erred in merely ignoring pertinent evidence pro- vided by witnesses corroborat- ing applicant's testimony. Board erred when it based its conclu- sions on applicant's credibility without regard to testimony pro- vided by applicant's witness and expert witness. Essa v. Canada (Minister of Citizenship and Immigration) (Dec. 20, 2011, F.C., Boivin J., File No. IMM-2111-11) 209 A.C.W.S. (3d) 925 (16 pp.) Industrial And Intellectual Property Action by PATENTS Invention had been disclosed to public before inventor applied for patent inventor bearing assembly and contained all of its essential elements. Unpatented bearing assem- bly had been manufactured and rented out before inventor applied for patent. Rental was neither experimental in nature nor subject to confidentiality provisions. Unpatented bearing assembly and its drawings could have been inspected by renter so invention had been disclosed to public before inventor applied for patent. Fact that unpatented bearing assembly had not actual- ly been inspected was irrelevant. With respect to obviousness, same type of bearing assembly had been used in core drilling equipment in oil and gas industry before inventor applied for pat- ent. While there were differences between core drilling equipment and downhole drilling motors, differences were minor or irrel- evant. It would have been obvi- ous for skilled person to try to apply elements from core drilling equipment to downhole drilling motor application. Wenzel Downhole Tools Ltd. v. National-Oilwell Canada Ltd. (Nov. 29, 2011, F.C., Snider J., File No. T-1327-05) 209 A.CW.S. (3d) 931 (89 pp.). TAX COURT OF CANADA Income Tax and pat- entee against competitors for relief for patent infringement. Counterclaim by competitors for declaration of invalidity of pat- ent. Inventor worked in oil and gas drilling industry. Some oil and gas drilling was done with drilling motors that rotated at end of non-rotating pipe when mud was pumped through pipe. Such drilling motors requiring bearing assemblies that could withstand various external forces. Inventor designed bear- ing assembly that could with- stand upward and downward forces using single bearing rather than relying on one bearing for upward forces and second bear- ing for downward forces. Use of single bearing allowed bearing assembly to be smaller. Inventor obtained patent and assigned it to patentee. Competitors were group of related companies that manufactured, rented, and sold similar bearing assemblies. Action dismissed; counterclaim allowed. Patent was invalid on bases of anticipation and obvi- ousness. With respect to antici- pation, inventor's brother had designed similar bearing assem- bly before inventor applied for patent. Brother's unpatented bearing assembly fulfilled exact- ly same function as inventor's GOODS AND SERVICES TAX Individual's actions undertaken as self-interested creditor Appeal by individual from reas- sessment by Minister under Excise Tax Act (Can.). professional Individual was in commercial real estate industry and specialized in negotiation of commercial real estate lease agreements. Individual was asked to provide advice on lease for premises in which com- pany was planning to operate res- taurant. As of October 2002, both individual and manager who had hired him were listed on Alberta Corporate Registry as directors of company. By March 2003, com- pany was experiencing financial difficulties and engaged individual through his numbered corpora- tion to renegotiate lease. Individual was successful and invoiced com- pany for $53,500 for that service. Invoice was not paid and individ- ual registered security agreement against restaurant equipment of company. In March 2004, indi- vidual's numbered corporation purchased equipment of compa- ny, which equipment constituted payment of $32,000 on amount owing on invoice. Additionally, company's lease was assigned to individual's numbered corpora- tion. Subsequently, individual became more involved with affairs of company. When individual was contacted by CRA in 2004 about PAGE 13

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