Law Times

lAw Times • April 30, 2012 Commissioner's decision respected ordinary meaning of word "benefit" in Act, consistent with principles of statutory interpretation and evi- denced transparency and intelligi- bility in decision-making process. Commissioner' Vaughan (City) v. Ontario (Information Commissioner) (Dec. 6, 2011, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Pardu and Mulligan JJ., File No. 341/10) 211 A.C.W.S. (3d) 458 (16 pp.). s decision upheld. and Civil Procedure COMMENCEMENT OF PROCEEDINGS Commissioner brought applica- tion for declaration respondents engaged in conduct contrary to s. 74.01(1)(a) and (b) of Competition Act (Can.). Commissioner sought order that respondents stop mak- ing representations about dropped call performance for ten years and order that respondents stop for ten years making false or misleading representations to public promoting use of their wireless telecommunica- tions services. Respondents sought production of documents from commissioner and new entrants. Respondents were permitted to conduct examination of Wind and Public under Rule 39.03 of Rules of Civil Procedure (Ont.) before deliv- ering responding application record. Respondents were not permitted to initiate Rule 39.03 examination of Videotron because Commissioner intended to conduct such exami- nation. Respondents were not attempting to conduct discovery. Respondents were able to specify scope of proposed examinations Examination of Public Mobile and Wind Mobile. Compelling respon- dents to file application record at this time would not be efficient use of judicial resources or make proceeding fairer or more targeted. Refusing to order respondents to file application record did not preju- dice commissioner. Respondent' Refusing to order respondents to file application record did not prejudice commissioner motion to strike out Videotron por- tion of affidavit was dismissed as premature. It was not clear docu- ments and information requested by commissioner would be gener- ated by normal application of Rules of Civil Procedure (Ont.). Ordering compliance with respondents' doc- ument request did not appear to be necessary. Canada s of Competition) v. Rogers Communications Inc. (Dec. 7, 2011, Ont. S.C.J., Marrocco J., File No. CV-10-8993-00 CL) 211 A.C.W.S. (3d) 317 (12 pp.). Individual's action of giving gold Contempt of Court GROUNDS Application by receiver for order finding individual in contempt of court orders. Orders were made following appointment of receiv- er in attempt to recover precious metals consisting of gold bars and silver with value of approxi- mately $2.2 million which debtors obtained just prior to receivership order. Order directed that parties in possession or control of precious bars to cousin admission he had "possession or control" of them Privacy metals deliver possession and con- trol of them by specified date, and directed individual and company said to have been owned by him to immediately provide receiver with information regarding location of precious metals and contact infor- mation for individuals or entity in possession or in control of them. Application granted. Sentence of six months' incarceration was imposed. Individual was in con- tempt of order. In individual' action of giving gold bars to his cousin who gave them to others, as he claimed, his evidence amounted to admission that he had "posses- sion or control" of them. It was clear that individual had informa- tion required to be provided to receiver pursuant to order, and that individual received copy of order. There was little purpose in ordering individual to pay fine for his contempt, as collectability was considerable issue. Central 1 Credit Union v. UM Financial Inc. (Feb. 8, 2012, Ont. S.C.J. s J., File No. CV-11-9144-CL) 211 A.C.W.S. (3d) 322 (10 pp.). (Comm. List), Newbould FEDERAL COURT Aboriginal Peoples (Commissioner Returning officer was appointed for election. Chief instructed band manager to prepare and post notic- es of election. Election notices were not posted so chief posted election notices himself. Applicants argued election was called on short notice of 13 days. Customary band prac- tice was to post notices of election 21 to 30 days in advance of poll. Applicants argued it was custom- ary band practice for returning officer to take complete control of election process. Returning officer was not engaged until four days before election. Returning officer had control of ballot boxes until end of polling. Custody of ballot boxes was unclear after that. One individual took control of boxes. Same individual was elected chief. In election of two female council- ors there were 45 spoiled ballots. Applicant sought to set aside results of band election. Number of total ballots printed was never disclosed. Application for judicial review was allowed. Band' Causal and material connection between irregularity and outcome of vote SELF-GOVERNMENT conducted in accordance with prin- ciples of natural justice. Short notice was not technical defect but rather went to heart of process. Origin of high number of spoiled ballots was misalignment of names on ballots. Closeness of votes for female coun- cilors established causal and mate- rial connection between irregularity and outcome of vote. Fact band elec- tion was conducted by secret bal- lot process indicated band custom reflected democratic principles and election had to conform to funda- mental principles of natural justice and fairness. Principles of fairness and impartiality were not respected in election process. Election results were set aside. New election was to be called and conducted according to customary band practices within three months. Poker v. Mushuau Innu First Nation (Jan. 3, 2012, F.C., Rennie J., File No. s election was not CASELAW T-458-10) 211 A.C.W.S. (3d) 250 (15 pp.). Minister tendered proposed legislation without Agriculture MARKETING Canadian Wheat Board charged with marketing Canadian grain in interprovincial and export trade. Section 47.1 of Canadian Wheat Board Act ("CWBA") requires Minister of Agriculture to engage in consultative process with board and to gain consent of Western Canadian wheat and barley pro- ducers with respect conducting consultation changes to well-established process of marketing grains in Canada. Minister unilaterally proceeding to revolutionize process by secur- ing imminent passage of "An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts" from Marketing Freedom for Grain Farmers Act (Can.). Intention of proposed legislation to replace present centralized marketing sys- tem with marketing freedom for grain farmers. Board and "produc- ers" (those persons that farm grain in relevant areas) applied for decla- ration that Minister' to proposed stituted affront to rule of law. Sole question for determination whether Minister breached process require- ments of s. 47.1 and, if so, appropri- ate relief. Application for declaration of breach granted. Undisputed that Minister tendered proposed legisla- tion without conducting consulta- tion and gaining consent expressed in s. 47.1 of CWBA. Contextual historical approach to interpreta- tion of CWBA leads to conclusion that board' s conduct con- practices "significant and funda- mental" because long standing and strongly supported by large number of grain producers. Support wor- thy of respect. Democratic structure important to Canada' s democratic marketing trade obligations under NAFTA. Correct interpretation should also include Minister' s international CWBA intended to require Minister to consult and gain consent where addition or subtraction of particular grains from marketing regime con- templated or change to democratic structure of board contemplated. Unreasonable to interpret CWBA to conclude that Minister' s perspective. consult and gain consent does not apply when dismantling board. Declaration that Minister' s duty to in breach of CWBA granted. Friends of the Canadian Wheat Board v. Canada (Attorney General) (Dec. 7, 2011, F.C., Campbell J., File No. T-1057-11; T-1735-11) 211 A.C.W.S. (3d) 338 (25 pp.). s conduct indicated which residency test used Respondent was citizen of Yemen. In January 2005, respondent entered Canada and was admitted as permanent resident. In July 2008, respondent applied for Reasons should have at least Citizenship APPEAL ship. Respondent listed 153 days of absence from Canada. Respondent noted that he rented one residence in Canada and owned another and also owned three houses and lands in Yemen. Respondent indi- cated that he was retired for January citizen- www.lawtimesnews.com 2005 to April 2008, and that he was supervisor from April 2008 to present. However, there were documents listing respondent as working for Yemeni government in November 2005 and November 2007. Minister of Citizenship and Immigration expressed concern that respondent had not been living in Canada as required and recom- mended that respondent be referred to hearing. Citizenship judge granted citizenship to respondent. Minister appealed. Appeal allowed. Citizenship judge failed to provide adequate reasons for approving respondent' did not provide sufficient clarity, precision and intelligibility. Reasons should have at very least indicated which residency test was used and why that test was or was not met. Canada (Minister of Citizenship and Immigration) v. Al-Showaiter (Jan. 4, 2012, F.C., Near J., File No. T-411- 11) 211 A.C.W.S. (3d) 268 (13 pp.). Applicant was employed by agency. Applicant applied for two different positions with agency. Applicant was screened out of competitions because applicant failed to meet minimum experience requirement for job. Agency accommodated applicant' Applicant denied employment oppor- tunity because took leave to care for family Human Rights Legislation DISCRIMINATION rience but excluded applicant's more s maternity leaves as expe- than three years of family leave. Application for judicial review was allowed. Family status included obligations of one family member to care for other members of fam- ily. Applicant facie case of discrimination based on family status. Because applicant took three years and four months of family leave, applicant was unable to meet requirements of positions. Applicant was denied employment opportunity because applicant took leave to care for family. Effect of pol- icy was to withhold or limit access to opportunities, benefits or advan- tages to one group that were made available to another. Agency failed to provide explanation for conduct in question. Agency' established prima modate applicant's period of fam- s refusal to accom- ily leave in context of experience requirement was prima facie evi- dence of discrimination in course of applicant' suffered adverse effect due to fam- ily status. Agency was directed to accept that practice of not accom- modating applicant' in experience requirement was dis- criminatory. Patterson v. Canada Revenue Agency (Dec. 1, 2011, F.C., Snider J., File No. T-569-11) 211 A.C.W.S. (3d) 353 (22 pp.). s family leave CRIMINAL CASES Breathalyzer ONTARIO Accused charged with impaired driving, "over 80", and dangerous driving. Accused applied to exclude evidence based on breach of s. 8 of Canadian Charter of Rights Many aspects of officer's evidence not articulated in his notes DEMAND FOR BREATH (BLOOD) SAMPLE s employment. Applicant PAGE 15 and Freedoms. Officer stopped accused after observing erratic driv- ing at high speed. Officer believed that all five passengers in vehicle were intoxicated. Officer smelled alcohol coming from accused' s application. Reasons breath. Accused told officer he had approximately three drinks. Officer gave no evidence as to walking of accused, his motor skills, eyes, face, or speech. Accused argued officer did not have reasonable and prob- able grounds to demand breath sample. Application allowed, evi- dence excluded. Many aspects of officer' s lated in his notes. Officer formed subjective grounds to arrest accused for impaired driving. Driving over speed limit and passing two vehi- cles without something else did not point inexorably to indication of some impairment. Objective review of officer' s evidence were not articu- test. Officer did not have reason- able and probable grounds to make breath demand. While collection of breath samples was relatively non- intrusive, Charter-infringing con- duct was serious. Officer had very less intrusive alternative in road- side screening device. Drinking and driving offences were very serious, but nothing took this case into more serious category. R. v. Tait (Feb. 7, 2012, Ont. C.J., Bourque J., File No. 11-07244) 99 W.C.B. (2d) 114 (6 pp.). s grounds did not meet Charter of Rights Accused charged with impaired driving and refusal No reasonable and probable grounds for concluding strip search necessary SEARCH AND SEIZURE breath sample. Accused applied for stay of proceedings based on breach of s. 8 Charter rights. Following his arrest accused was strip searched before being lodged in cells for night. Accused testified he was searched at scene and again after leaving booking room, but no contraband was found. Accused testified that officer who conduct- ed strip search was yelling at him, so much so that few other officers entered room where he was naked. Application allowed, stay of pro- ceedings entered. Officer testified he conferred with another officer to determine whether to release accused or lodge him in cells, but there was no notation of that in his notes. Several important pieces of information were not recorded in any officers' notes, including indication of who authorized strip search. Absence of notes in relation to pivotal issues by any of offi- cers was troubling and diminished weight of their evidence. Accused' to provide movements in booking room did not justify strip search, and were equally consistent with agitation, panic, fear, and being drunk. This was impaired driving case and accused had no prior criminal record. There were no justifiable safety concerns regarding accused' s potential possession of weapon or contraband. There were no rea- sonable and probable grounds for concluding strip search was neces- sary. Strip search conducted was not justified in law and constituted breach of s. 8 Charter rights. Only appropriate remedy was stay of proceedings. R. v. McGee (Feb. 3, 2012, Ont. C.J., Grossman J.) 99 W.C.B. (2d) 117 (21 pp.). s LT

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