Law Times

Law Times • February 22, 2016 Page 13 www.lawtimesnews.com 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. It's time to rank… THE TOP 10 LITIGATION AND CORPORATE LAW BOUTIQUES Complete the survey online at canadianlawyermag.com/surveys and make your picks. SURVEY IS OPEN UNTIL MARCH 1 st Untitled-2 1 2016-02-03 9:32 AM FEDERAL COURT OF APPEAL Employment OCCUPATIONAL HEALTH AND SAFETY Appeals officer's conclusion that employer could screen out complaints it considered unrelated to workplace vio- lence was unreasonable Employee made workplace vio- lence complaint. Employer un- dertook fact-finding process to review employee's concerns and determine whether investiga- tion was warranted. Employer concluded that allegations in complaint did not constitute ha- rassment and did not warrant investigation. Employee was con- cerned that employer had really conducted investigation without selecting impartial, competent person within meaning of Can- ada Occupational Health and Safety Regulations. Health and safety officer issued direction that employer failed to appoint competent person as required by s. 20.9(3) of regulations. Appeals officer allowed employer's appeal and set aside direction. Appeals officer found allegations in com- plaint did not raise workplace violence and employer had not been made aware of alleged work- place violence. Employee applied for judicial review. Application judge found that pre-screening of complaint must be limited to fact- finding for purposes of resolving dispute with employee. Appli- cation judge found employer effectively conducted investiga- tion within fact-finding process, which it did not have authority to do. Application judge found ap- peals officer's decision was unrea- sonable. Employer appealed. Ap- peal dismissed. Employer was not entitled to unilaterally determine whether conduct complained of constituted workplace violence before being required to appoint competent person to investigate matter pursuant to s. 20.9 of regu- lations. Appeals officer's conclu- sion that employer could screen out complaints it considered un- related to workplace violence was unreasonable. Unfettered discre- tion to employers to determine whether complaint warranted in- vestigation by competent person could not be read into s. 20.9(3). Employee had right to impar- tial investigation of complaint. Application judge did not err in finding appeals officer's decision fell outside scope of possible, ac- ceptable outcomes. Employer must appoint competent person to investigate when matter could not be resolved with employee, absent situation where it was plain and obvious that allegations fell outside scope of definition of workplace violence. It was not plain and obvious facts alleged did not amount to workplace vio- lence. It was not employer's role at early stage to decide that conduct alleged was not serious enough to constitute workplace violence. Determination should be made by competent person following investigation. Canada (Attorney General) v. PSAC (Nov. 30, 2015, F.C.A., J.D. Denis Pelletier J.A., D.G. Near J.A., and Yves de Montigny J.A., File No. A-544-14) Decision at 248 A.C.W.S. (3d) 355 was af- firmed. 261 A.C.W.S. (3d) 344. Evidence DOCUMENTARY EVIDENCE Audit trails were admissible Plaintiff employee of defendant Canada Revenue Agency (CRA) believed that her co-workers had improperly accessed her personal tax information using CRA's systems when she heard them making comments about personal bankruptcy, since she had previously declared bank- ruptcy. After internal investiga- tion, employee requested further investigation and claimed she ex- perienced workplace harassment to point where she resigned. Em- ployee brought action for misfea- sance in public office. Employee appealed judgment determining admissibility of affidavit evi- dence respecting audit trails on motions for summary judgment and summary trial. Appeal dis- missed. Motions judge found that recordation of access to em- ployee's CRA files occurred in- dependently of any investigation, and audit trails were gathered for review. Motions judge found au- dit trails were "business records" under s. 30(1) of Canada Evi- dence Act and were not "inves- tigation records" for purposes of s. 30(10) of the act. Motions judge made no error of law in con- cluding that because audit trails were business records, they were admissible. Motions judge com- mitted no reviewable error in ac- cepting explanatory portions in affidavits as admissible evidence as she required explanation of meaning of audit trails. Motions judge erred in failing to strike certain portions dealing with employee's relationship with her superior as they had no bearing on issues, but ruling was not ma- terial to decision on motions. Collins v. R. (Dec. 10, 2015, F.C.A., Eleanor R. Dawson J.A., C. Michael Ryer J.A., and Wyman W. Webb J.A., File No. A-211-14, A-343-13, A-356-13) Decision at 240 A.C.W.S. (3d) 846 was af- firmed. 261 A.C.W.S. (3d) 316. FEDERAL COURT Administrative Law JUDICIAL REVIEW Applicants had no right to participate in medical mari- juana licensing process Respondent company applied for license to produce medical mari- juana at certain property owned by respondent numbered com- pany. Respondent federal health authority granted preliminary approval, subject to inspection to ensure production facility met all applicable regulatory stan- dards. Meanwhile, municipality in which property located passed bylaw prohibiting production of medical marijuana on all prop- erties within its jurisdiction. Respondent, therefore, applied to municipality to rezone prop- erty to permit construction and operation of licensed medical marijuana production facility on property. Municipality gave notice of rezoning application to owners and/or occupiers of adja- cent properties, including appli- cants. Applicants wrote to mu- nicipality voicing strong oppo- sition. Municipality's planning department prepared report acknowledging concerns but referencing existing regulatory requirements meant to address such health, safety and security concerns, and recommended ap- plication receive first and second reading and be referred to public hearing. Following public hear- ing, at which applicants given opportunity to voice concerns, municipality decided to proceed with rezoning subject to restric- tive covenants meant to ensure compliance with regulatory re- quirements and environmental remediation of site. Applicants wrote to federal health authority to express concerns and request standing to be heard in licens- ing application. After receiving no response to repeated requests, applicants applied for declara- tion they were, as matter of natu- ral justice and procedural fair- ness, entitled to be heard and for order of mandamus compelling authority to allow them to par- ticipate in licensing process. Ap- plication dismissed. Applicants had no statutory or common law right to participate in medi- cal marijuana licensing process. While Marihuana for Medical Purposes Regulations required notice of applications to local authorities, they did not require notice to owners or occupiers of adjacent properties. While regulations required authority to refuse any license that would cre- ate risk to public health, safety or security, they contemplated local authorities, not third parties such as applicants, would raise such concerns. Applicants concerns were, essentially, related to land use or planning issues, and what municipality had or had not been entitled to do in rezoning pro- cess. Their only remedy was to participate in that, not marijuana production licensing process. P & S Holdings Ltd. v. Can- ada (Dec. 1, 2015, F.C., Anne L. Mactavish J., File No. T-2184-14) 261 A.C.W.S. (3d) 252. ONTARIO CIVIL CASES Appeal STAY PENDING APPEAL Balance of convenience favoured granting stay because sale of matrimonial home might perma- nently impair husband's rights Parties were married for 19 years and had four children. Husband was successful homebuilder and land developer. Parties acquired several properties during mar- riage and most of them were placed in wife's name, including matrimonial home. Parties had purchased property adjacent to matrimonial home, which was placed in name of oldest daugh- ter. Husband claimed parties had agreed they would subdivide

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