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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Human Rights Legislation DISCRIMINATION Three-part "bona fide occupational requirement" test not applicable to s. 3(6)(a) of Human Rights Code (N.B.) which addresses "bona fide"' Employee complained to New Brunswick Human Rights Com- mission that employer's manda- tory retirement policy consti- tuted age discrimination. Human Rights Code (N.B.), provides that age discrimination provisions not applicable under s. 3(6)(a) of Code if employee terminated pursuant to "bona fide pension plan". Board of Inquiry held that once prima facie case of age dis- crimination made out employer must satisfy three-part "bona fide occupational requirement" test set out in British Columbia (Public Service Employee Relations Com- mission) v. B.C.G.S.E.U. (1999), 176 D.L.R. (4th) 1, 90 A.C.W.S. (3d) 64 (S.C.C.) ("Meiorin"). Court of Queen's Bench set aside board's decision, instead applying test requiring that pension plan be both bona fide and reason- able. Court of Appeal concluded that applicable test whether plan subjectively and objectively bona fide. It dismissed employee's ap- peal and employer's cross-appeal. Further appeal to Supreme Court of Canada dismissed. Three-part Meiorin test not applicable to s. 3(6)(a) of Code which addresses "bona fide"' retirement or pen- sion plans rather than bona fide occupational qualifications un- retirement or pension plans der s. 3(5) of Code. Section 3(6) (a) requires that pension plan be subjectively and objectively bona fide. Plan protected by s. 3(6)(a) unless there is evidence that pension plan as whole not legitimate. Potash Corp. of Saskatchewan v. Scott (July 18, 2008, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ., File No. 31652) Appeal from 149 A.C.W.S. (3d) 1093; 271 D.L.R. (4th) 483; 45 Admin. L.R. (4th) 233; 53 C.C.P.B. 1; 57 C.H.R.R. D/334; 2007 C.L.L.C. ¶230-015; 301 N.B.R. (2d) 204 dismissed. Or- der No. 008/206/002 (56 pp.). FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Action constituted collateral attack on decisions which had to be challenged by way of judicial review Motions judge correctly dismissed appellant's action for damages on ground that action did not raise genuine issue for trial. Relief sought by appellant in this ac- tion was contingent upon deter- mination by Federal Court that decisions made by Director Gen- eral of Therapeutic Directorate of Health Canada were unlawful. Director General's decision clearly constituted decision rendered by federal board. Appellant's action constituted collateral attack on or indirect challenge to decisions rendered by Director General. If appellant sought to challenge de- cision of Director General, it must do so by commencing application for judicial review. OctOber 20, 2008 • Law times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. Nu-Pharm Inc. v. Canada (July 3, 2008, F.C.A., Linden, Nadon and Sexton JJ.A., File No. A-486- 07) Appeal from 160 A.C.W.S. (3d) 581 dismissed. Order No. 008/204/036 (22 pp.). Taxation INCOME TAX Respondent met definition of "Canadian-controlled private corporation" Tax Court Judge correctly con- cluded that respondent met statu- tory definition of "Canadian-con- trolled private corporation" in s. 125(7) of Income Tax Act (Can.), for 1993 to 1998. Paragraph (b) of definition of "Canadian-con- trolled private corporation" in s. 125(7), as it read for 1996, 1997 and 1998, applies only in situa- tions where majority of voting shares of corporation are held by non-residents, or public corpora- tions but no person or group of persons has de jure control. Perfect Fry Co. v. Canada (June 18, 2008, F.C.A., Linden, Shar- low and Trudel JJ.A., File No. A-188-07) Appeal from 156 A.C.W.S. (3d) 250; 2007 D.T.C. 588; [2007] 3 C.T.C. 2365 dis- missed. Order No. 008/204/027 (6 pp.). CIVIL CASES Bankruptcy And Insolvency ONTARIO Application for discharge from bankruptcy. This was bankrupt's first bankruptcy and was precipi- tated by failure of his company. 95% of declared debts were tax DISCHARGE Bankrupt granted conditional discharge debts. Application granted. Dis- charge was granted upon condi- tional upon payment to trustee of $30,000 and was suspended for period of 12 months. It could not be concluded that bankrupt had no income. Bankrupt's conduct warranted lengthy suspension. Bankrupt showed little effort to reduce his standard of living in dealing with his insolvency. Ashbee (Re) (July 3, 2008, Ont.S.C.J., Registrar Nettie, File No. 31-449753) Order No. 008/192/037 (4 pp.). Civil Procedure Appeal from decision ordering that firm be removed as solici- tors. R.P. acquired business from R.L.. R.P. sold outstanding shares of R.L. to purchaser. Appellant solicitors acted as representatives of R.P. in transaction. Purchaser amalgamated with R.P.. Appeal allowed. Order was set aside. Master erred in law in conclud- ing that respondents could assert possible conflict of interest arising solely as consequence of amalga- mation. Master misapprehended evidence. Existence of confiden- tial information was rebutted on facts. Rannala v. 1212802 Alberta Ltd. (July 7, 2008, Ont.S.C.J., Wilton-Siegel J., File No. 08-CL- 7405) Order No. 008/192/055 (4 pp.). CHANGE OF SOLICITOR Existence of confidential information was rebutted DISCOVERY Defendant's motion to compel plaintiffs to attend in-home assessment was dismissed home defence future care costs and vocational assessment and to compel plaintiffs to execute authorizations permitting de- fendant's experts to speak with plaintiff's treating counsellors, therapists and physicians with regard to future care costs and vocational issues. Motion was dismissed. Relief sought was in- vasive of plaintiff's home, privacy and confidentiality with medical advisors. It was not essential for defendants' experts to meet with plaintiff in plaintiff's home. De- fendants had access to all infor- mation required to respond to reports. Repic v. Hamilton (City) (July 8, 2008, Ont.S.C.J., Lofchik J., File No. 00-1156) Order No. 008/189/039 (6 pp.). SETTLEMENT Judgment issued in accordance with terms in accepted offer to settle Plaintiff brought action for per- sonal injuries sustained in bicy- cle and motor vehicle collision. Defendant brought motion to compel plaintiffs to attend in- Applicants claimed they were adult dependents of deceased. Applicants claimed deceased did not make adequate provisions for applicant in will and sought sup- port from estate. Respondents sought judgment in accordance with terms of accepted offer to settle. Applicant sought inquiry into circumstances surrounding acceptance of offer and direction for proceedings to continue as it there were not accepted offer to settle. Applicant was represented throughout proceeding and dur- ing negotiations. Respondent's motion was allowed. Judgment issued in accordance with terms in accepted offer to settle. Re- cord did not support finding ap- plicant was under legal disability such that applicant could not retain and instruct counsel. Is- sue of non-disclosure of value of home was irrelevant. Applicant did not establish duress. Noth- WHAT CAN YOUR ONLINE RESEARCH SERVICE DO FOR YOU? CAN YOU NOTE UP ALL TYPES OF LEGISLATION? STATUTES, RULES, AND REGULATIONS? YOU CAN. KeyCiteCanada from WestlaweCARSWELL is the ONLY statute citator with true historical depth. It is also the ONLY rules citator and the ONLY regulation citator. With WestlaweCARSWELL, Based on the renowned Carswell suite of legislative citators – Canadian Statute Citations, Rules Judicially Considered, and Regulations Judicially Considered – KeyCiteCanada gives you instant access to 40 years of expert editorial analysis. www.westlawecarswell.com/youcan Request a demo for a chance to win $2,500 in AMEX gift certificates Untitled-5 1 www.lawtimesnews.com AUTHORITATIVE. INNOVATIVE. TRUSTED. 9/30/08 9:56:16 AM

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