Law Times

Law Times • January 25, 2016 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Immigration SELECTION AND ADMISSION Officer improperly restricted her discretion by taking literal approach to hardship test Appellant was Tamil from Sri Lanka. His family arranged for him to travel to Canada to live with uncle when he was 16. His claim for refugee protection was refused as was his application for pre-removal risk assessment. His application for humanitarian and compassionate relief under s. 25(1) of Immigration and Refugee Pro - tection Act was rejected by officer who concluded she was not satis- fied return to Sri Lanka would re- sult in unusual and undeserved or disproportionate hardship. Fed- eral Court found officer's decision reasonable and Federal Court of Appeal agreed. Appellant's ap- peal allowed. Minister has discre- tion to exempt foreign nationals from ordinary requirements of Act, pursuant to s. 25(1), if of the opinion that such relief justified by humanitarian and compas - sionate considerations, including best interests of child directly af- fected. Ministerial guidelines es- tablish "assessment of hardship". Specifically, s. 25(1) provides that applicants must demon- strate "unusual and undeserved" or "disproportionate" hardship. Guidelines are instructive but not determinative; they do not create thresholds for relief separate and apart from humanitarian pur - pose of s. 25(1). Officers should not fetter discretion by treating them as such, thereby limiting ability to consider and give weight to all relevant humanitarian and compassionate considerations. Best interests of child directly af - fected are singularly significant focus and perspective, given that s. 25(1) specifically directs that they be considered. Fact that ap - pellant was child triggered best interests analysis but also should have inf luenced manner in which other circumstances were evalu - ated. Concept of unusual or un- deserved hardship presumptively inapplicable in case of child appli- cant since children rarely, if ever, deserving of hardship. Officer failed to consider totality of ap- pellant's circumstances and took unduly narrow approach to as- sessment of hardship. She failed to give sufficient consideration to appellant's youth, his mental health and evidence that he would suffer discrimination if returned to Sri Lanka. She improperly re - stricted her discretion by taking literal approach to hardship test, thereby rendering her decision unreasonable. Kanthasamy v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Gascon J., Moldaver J., and Wag - ner J., File No. 35990) Decision at 239 A.C.W.S. (3d) 991 was re- versed. 260 A.C.W.S. (3d) 344. FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Motion to remove material from applicant's record was granted Applicant applied for judicial re- view, seeking to quash decision of Copyright Board. In notice of ap- plication, applicant made request under R. 317 of Federal Court Rules that board supply it with material that was relevant to ap - plication that was in possession of board and not in applicant's possession. Board informed par- ties it did not have any relevant material in its possession that was not already in applicant's posses- sion. Applicant placed material that was before board and in its possession into application record but it was not under affidavit. Respondents brought motion to remove material from applicant's record. Motion granted. Where party had material in its posses - sion and that was before admin- istrative decision maker at time it made decision but it was not produced by decision maker in response to R. 317 request, party had to take affirmative steps to place material before reviewing court. Rules 306 and 307 allowed parties to serve upon each other affidavit that appended mate - rial. Here applicant included in its application material it had in its possession that was before board at time it made its decision but it did not introduce material by way of affidavit, which was error. Applicant should have served af - fidavit explaining that material was before board when it made its decision, and appending relevant material to affidavit. Respondents then could exercise right to cross- examine if they wanted to. Minor irregularity could be easily fixed. Applicant was to remove materi - als it mistakenly included from record. Applicant could then serve affidavit appending mate- rial that was before board and in its possession, including material that was mistakenly included in application record. Respondents could then serve affidavits in re - sponse and cross-examinations could take place. Canadian Copyright Licens- ing Agency (Access Copyright) v. Alberta (Nov. 26, 2015, F.C.A., David Stratas J.A., File No. A-293- 15) 260 A.C.W.S. (3d) 206. Labour Relations DUTY TO BARGAIN IN GOOD FAITH Nothing unreasonable in impugned portion of remedial order Canada Industrial Relations Board determined that applicant breached duty to bargain in good faith pursuant to s. 50(a) of Can - ada Labour Code. Board issued detailed remedial order. Applicant applied for judicial review. Appli- cation dismissed. Applicant did not provide requisite notice to ar- gue that order violated Canadian Charter of Rights and Freedoms. Remedial determination was en- titled to considerable deference. There was nothing unreasonable in impugned portion of reme- dial order. Remedial order might have facilitated compromise and furthered process of collective bargaining. Order was not puni - tive. Board's reasons might have provided fuller explanation but reasons did not need to be perfect. There was ample basis for remedy that was awarded. Listuguj Mi'gmaq First Na - tion v. PSAC (Nov. 4, 2015, F.C.A., Pelletier J.A., Scott J.A., and Mary J.L. Gleason J.A., File No. A-6-15) 260 A.C.W.S. (3d) 357. Taxation INCOME TAX It was to be presumed that Parliament did not wish to make any distinction between categories of employment or industries for purposes of exclusion in s. 11(4) of Employment Insurance Act Emp.loyees were long-distance truck drivers for Quebec com- pany, who worked average of 55 to 60 hours per week, alternating with week of rest. Employees did not receive remuneration for peri - ods when employer did not assign work. From 2009 and 2010, em- ployees applied for employment insurance for weeks during which they did not work. Canadian Em- ployment Insurance Commission issued series of decisions reject- ing employees' applications on grounds that periods of leave or time off formed part of employees' work schedule. Board of Referees allowed employees' appeals and concluded that employees were disposed to work all weeks, and that they were not responsible for fact that employer only made equipment available every other week. Board concluded employ - ees were not working more hours than normal in their area of work and were not within exception covered by s. 11(4) of Employment Insurance Act. Commission's ap - peals were dismissed by Appel- late Division of Social Security Tribunal, which concluded that s. 11(4) of insurance act did not ap- ply to employees, and found that even if board erred in comparing working hours of others employed in same domain, commission did not put forward any evidence to support its assertion that normal work week was 40 hours. Com - mission brought application for judicial review. Application granted. Decisions of tribunal and board in interpretation of s. 11(4) were not reasonable. Object of s. 11(4) of act was to ensure that only workers who had employment interruption status could benefit from temporary compensation. Since Parliament was silent as to number of hours usually worked by persons employed full-time, it was understood that it would rely on provincial legislations, which provided that normal work week consisted of 40 hours. In absence of any clarification as to what was meant by normal work week, it was to be presumed that Parlia - ment did not wish to make any distinction between categories of employment or industries for pur- poses of exclusion in s. 11(4) of act. Interpreting exclusion in s. 11(4) of act based on hours worked by full- time employees in particular in - dustry would have effectively cre- ated disparities in access to EI, and would have disproportionately favoured workers in certain areas where work weeks were often lon - ger. Variable exclusion which took into account type of employment to determine whether person was unemployed under s. 11(4) of act would not be consistent with spirit of legislation and objective sought by Parliament through EI. Canada (Procureur général) c. Paradis (Nov. 4, 2015, F.C.A., M. Nadon J.A., Richard Boivin J.A., and Yves de Montigny J.A., File No. A-427-14, A-428-14, A-426-14, A-430-14, A-431-14, A-438-14) 260 A.C.W.S. (3d) 413. FEDERAL COURT Civil Procedure CLASS ACTIONS Action for breach of fidu- ciary duties and treaty obliga- tions was not certified Between 1871 and 1921 Canada negotiated 11 treaties with vari- ous First Nations. Treaties pro- vided Canada with large tracts of land in exchange for promises made to First Nations. Canada agreed to pay annual annuity to each member of Treaty Bands. In 1875 amount of annuity pay - ments in first two treaties was increased from $3 per person to $5 per person. Plaintiffs alleged that Canada had not adjusted amount of annuity payments in any of treaties since that time and, as result, annuity payments had been reduced in value to point that they no longer contributed to welfare of individual recipi - ents. Plaintiffs claimed that pro- visions in treaties that provided for annuity payments entitled recipients to amount that was to be annually adjusted to ref lect inf lation and changes in purchas - ing power in order to maintain value that was equal to its buying power at time treaty was made. Plaintiffs claimed Canada was in breach of obligations under trea - ties and its fiduciary duties and sought damages and compensa- tion in amount equal to present value of losses sustained by indi- vidual beneficiaries as result of Canada's failure to adjust annu- ity payments over time. Plaintiffs brought motion to certify action as class proceeding. Motion dis- missed. Plaintiffs pleaded two causes of action, breach of treaty obligations and breach of fidu- ciary duty. It was not plain and obvious that plaintiffs had no standing such that claim could not succeed as class action. It was not plain and obvious that plead - ings did not disclose reasonable cause of action for breach of treaty if it was intention of parties at time treaties were signed that an - nuity would provide certain level of comfort to Indians and adjust- ment clause was not negotiated because parties did not foresee that purchasing power of annu- ity might be significantly eroded. It was not plain and obvious that pleadings did not disclose reason- able cause of action for breach of fiduciary duty to beneficiaries of annuity payments. Pleadings disclosed reasonable cause of ac - tion. There was identifiable class of two or more persons. How- ever, plaintiffs failed to establish that there were common issues or facts that related to all individual members of proposed class, given differences in treaties. Treaty in - terpretation was fact driven and must be done on treaty-by-treaty basis. Representative action might be more appropriate procedure. Neither plaintiff was appropriate representative. Horse Lake First Nation v. R. (Oct. 15, 2015, F.C., Russel W. Zinn J., File No. T-1784-12) 260 A.C.W.S. (3d) 221. Industrial and Intellectual Property TRADEMARKS Word "Fusion" was fairly common and suggestive dictionary word D Ltd. was f looring company that registered trademarks FUSION FORCE and FUSION PATCH in association with adhesives for f looring. D Ltd. also claimed use of several common law trade - marks containing word "Fusion" in association with adhesives and grout for f looring. C Ltd. special- ized in tile and stone installation. Less than one month after D Ltd. registered its trademarks, C Ltd. 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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