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Page 14 July 11, 2016 • law Times www.lawtimesnews.com CASELAW was made. Amount of award, af- ter application of reduction for contingencies, represented ap- proximately 14 months' pay and benefits. In light of adjudicator's comments regarding virtual cer- tainty that employee would have been terminated shortly after re- instatement, damages award was referable to 14 months following date of reinstatement. Employee earned no monies during this period as he did not start his self- employment business until sev- eral months later. Monies earned in this case were not referable to damages award such that their set-off on account of mitigation was unreasonable. Bahniuk v. Canada (At- torney General) (Apr. 26, 2016, F.C.A., Wyman W. Webb J.A., Donald J. Rennie J.A., and Mary J.L. Gleason J.A., A-329-15) Deci- sion at 258 A.C.W.S. (3d) 329 was reversed. 265 A.C.W.S. (3d) 933. Environmental Law ENFORCEMENT No reviewable error made in assessment of long-term nuclear waste management Power generation company, OPG, had plans for refurbish- ment and continued operation of four nuclear reactors at nuclear generating station. OPG was re- quired to seek amendment of its nuclear operator licence and re- newal of authorization to destroy fish by means other than fishing. These applications triggered en- vironmental assessment (EA) provisions of 1992 Canadian Environmental Assessment Act. Respective nuclear safety and fisheries entities responsible for granting licences sought were responsible authorities (RAs) charged with completing EA. RAs concluded that OPG's pro- posal was not likely to cause sig- nificant environmental effects after taking appropriate mitiga- tion measures into account. RAs were permitted to consider ap- plications for licences and autho- rizations. Applicants' application for judicial review was dismissed. Trial judge found RAs did not err in excluding low probabil- ity high impact accidents from scope of EA, given that this was discretionary decision subject to reasonableness standard of review. Trial judge found RA ar- ticulated threshold and rationale for it, thus turning their mind to issue and meeting require- ment to given "consideration" to pertinent matters. In light of this finding, argument concern- ing mitigation of low probability accidents also failed. Trial judge found as to consideration of likelihood or significance of en- vironmental effects, RAs articu- lated rational basis for their con- clusion and there was no reason to intervene. Trial judge found as to alleged unlawful delegation of duties, it was within RAs' power to delegate to OPG completion of environmental impact study and technical reports. Trial judge found argument that RAs imper- missibly delegated information generating tasks to be done after course of action decision could not stand in light of RAs' conclu- sion that screening report was complete. Applicants appealed. Appeal dismissed. Decision was reasonable. No reviewable error was made in assessment of long term nuclear waste management. On fuel management issue, RAs did not narrow scope of project but broadened it to encompass possibility of ongoing long term on-site storage of spent nuclear fuel. Excluding off-site long term fuel management from scope of assessment was reasonable. Ap- pellants would have court engage in microscopic re-assessment of evidence, which was not ap- propriate. Reasonable to assess likelihood of accidents based on improvements being imple- mented. Probability threshold of one in one million per year was reasonable. Safety Commission did not delegate environmental assessment to licencing process under when it mentioned in its decision that less probable acci- dents would nonetheless be ex- amined as part of safety review in upcoming licencing process. Greenpeace Canada v. Can- ada (Attorney General) (Apr. 13, 2016, F.C.A., David Stratas J.A., C. Michael Ryer J.A., and Mary J.L. Gleason J.A., A-564-14) Deci- sion at 246 A.C.W.S. (3d) 840 was affirmed. 265 A.C.W.S. (3d) 936. Immigration EXCLUSION AND EXPULSION Pre-removal risk assess- ment bar in Immigration and Refugee Protection Act (Can.) constitutionally valid Refugee claimants, mother and three daughters, were citizens of Israel who sought refugee protec- tion in Canada. Refugee Protec- tion Division declared claims to be abandoned. As result of decla- ration, refugee claimants were not able to obtain pre-removal risk as- sessment (PRRA), as s. 112(2)(b.1) of Immigration and Refugee Pro- tection Act (Can.) precluded ac- cess to PRRA process by individ- ual who abandoned refugee claim until 36 months passed from date refugee claim was declared aban- doned. Refugee claimants were removed from Canada. Refugee claimants applied for declaratory relief, claiming that s. 112(2)(b.1) of Act violated rights under s. 7 of Canadian Charter of Rights and Freedoms. Judge found that s. 112(2)(b.1) of Act was not ar- bitrary, overbroad or grossly disproportionate and dismissed application. Refugee claimants appealed. Appeal dismissed. Sec- tion 25.1 of Act allowed Minister to exempt applicant from applica- tion of bar contained in s. 112(2) (b.1) of Act. Enforcement officer's refusal to defer removal could be challenged by application for judicial review. Supervisory role of Federal Court, with ability of Minister to exempt applicant from application of s. 112(2)(b.1) of Act, created safety valve such that PRRA bar was not over- broad, arbitrary or grossly dispro- portionate. It was not recognized principle of fundamental justice that, prior to removing individual from Canada, decision-maker empowered to assess risk must conduct assessment of that risk that was in accordance with basic principles of fairness. Section 7 of Charter did not require particular type of process but it required fair process having regard to nature of proceedings and interests at stake. While enforcement officer might have impermissibly made nega- tive credibility findings on basis of written submissions when officer refused to defer refugee claimants' removal from Canada, refugee claimants did not perfect applica- tion for judicial review of that de- cision. Question before judge was not whether refugee claimants' s. 7 Charter rights were violated by way particular officer assessed evidence of risk but whether PRRA bar in s. 112(2)(b.1) of Act was constitutionally valid. Prohi- bition contained in s. 112(2)(b.1) of Act against bringing PRRA ap- plication until 36 months passed since claim for refugee protection was abandoned did not violate s. 7 of Charter. Atawnah v. Canada (Minis- ter of Public Safety and Emer- gency Preparedness) (May. 9, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Richard Boivin J.A., A-322-15) Decision at 256 A.C.W.S. (3d) 399 was af- firmed. 265 A.C.W.S. (3d) 996. Industrial and Intellectual Property TRADEMARKS Matter remitted for redetermination In 2006, plaintiffs commenced two actions against individual defendants, AL and SL (wife and husband), and L Co (their com- pany) resulting in consent order directing AL and L Co to cease selling items bearing plaintiffs' trademarks and to cease direct- ing public's attention to wares in manner likely to cause confu- sion. In October 2011 plaintiffs became aware that AL and L Co continuing to import, advertise and sell counterfeit fashion acces- sories bearing their trademarks. Plaintiffs issued cease and desist letter and commenced action against AL, SL and L Co, as well as 123 Co. Individual defendants filed statement of defence deny- ing allegations and claiming that L Co had ceased doing business and sold its business assets to 123 Co, company owned by AL's and SL's children (although originally owned by AL), in September 2011. Corporate defendants did not file statement of defence. Plaintiffs was successful in part in bringing motions for summary trial and default judgment. Motions grant- ed in part. Defendant appealed. Appeal allowed; matter remitted for redetermination. Trial judge made no error in proceeding by way of summary trial. But, given ambiguity in trial judge's reasons it was impossible to discern what acts of infringement defendant was found to have committed. Reasons could be read as find- ing that defendant was liable for all four instances of infringe- ment whereas other paragraphs seemed to indicate that trial judge found defendant responsible for infringing activities only up to May 2013. As trial judge premised liability determination on adverse credibility finding, made after re- view of rather extensive record, it would not be appropriate to step in and resolve ambiguity. Lam v. Chanel S. de R.L. (Apr. 11, 2016, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A., A-450- 15) Decision at 258 A.C.W.S. (3d) 796 was reversed. 265 A.C.W.S. (3d) 1012. Labour Relations JUDICIAL REVIEW Reasons in support of suspen- sion could not be sustained In applicant's grievance with re- spect to her disability leave from employment by Canada Revenue Agency, one issue was whether she had sent specific email to her supervisor. On applicant's request for assistance, CRA's IT department copied entire home drive with personal and work content on to 16 CDs which ap- plicant took home and viewed on her computer. Applicant used her then-boyfriend's laptop to make copies of relevant CD as her computer was not working. Production of CDs at hearing, as demanded by CRA's counsel, led to investigation by CRA. CRA imposed 40-day disciplinary sus- pension, on bases including her removal of unprotected taxpayer information without attempting to limit quantity of information removed, her downloading of CD contents on computer and laptop, and that such conduct breached s. 241 of Income Tax Act (Can.). Applicant's grievance was dismissed. Applicant applied for judicial review. Application granted in part. Adjudicator's upholding of 40-day suspension was based on elements he found to have been established, namely applicant's removal of taxpayer information without express au- thority of manager and breach of CRA policy by copying of email using non-CRA device. Reasons in support of suspension could not be sustained. Suspension was predicated on CRA's allegations that there was continued and ongoing risk of disclosure of sen- sitive taxpayer information and breach of s. 241 of Act, which ad- judicator dismissed as irrelevant or made no finding on. Adjudi- cator did not consider appropri- ateness of length of suspension in light of two acts of misconduct that were established and so ba- sis upon which suspension was justified could not be discerned without speculation and ratio- nalization. Matter would be re- mitted back for re-determination of appropriateness of suspension in light of findings that appli- cant breached CRA policy by removing taxpayer information without express authority from employer and by her use of non- CRA devices to make copies of CD containing her email. Lloyd v. Canada (Attorney General) (Apr. 13, 2016, F.C.A., Johanne Gauthier J.A., Donald J. Rennie J.A., and A.F. Scott J.A., A-368-15) 265 A.C.W.S. (3d) 1036. Natural Resources WATER AND WATER- COURSES Ministerial order pursuant to Navigable Waters Protection Act (Can.) was reasonable Ministerial order was issued un- der ss. 5 and 6 of Navigable Wa- ters Protection Act (Can.), order- ing applicant to remove f loating facility in entrance of river with- in 24 hours because it was unap- proved work. Applicant alleged that Minister exceeded its juris- diction in finding that pontoon ship was "work" under Act. Ap- plicant unsuccessfully brought application for judicial review of ministerial order. Applicant ap- pealed. Appeal dismissed. Judge did not err in holding that it was reasonable that Minister did not consider small docks exception. Judge did not err in ruling that it was reasonable for Minister to conclude that f loating installa- tion was "work" within meaning of Act, and not boat. Thibeault c. Canada (Procu- reur général) (Apr. 5, 2016, F.C.A., Johanne Gauthier J.A., Richard Boivin J.A., and Yves de Montig- ny J.A., A-130-15) Decision at 253 A.C.W.S. (3d) 219 was affirmed. 265 A.C.W.S. (3d) 1062. Ontario Civil Cases Administrative Law NATURAL JUSTICE Endorsement of motions judge failed to meet minimum standards Dispute between parties involved liability for basic structural con- sulting services provided by respondent to appellants. Sum- mary judgment was granted in favour of respondent. Appellant's counterclaim was dismissed. Ap- pellant appealed. Appeal allowed. Judgment was set aside. Reasons of motions judge were deficient. Motions judge gave no meaning- ful reasons for decision. Endorse- ment of motions judge failed to meet minimum standards and amounted to failure by motion judge to give any reasons. Court could not conduct meaningful review of endorsement of motion judge given its inadequacy. It was not fair to decide claim and coun- terclaim on record before court. Read Jones Christoffersen Ltd. v. Neilas Inc. (Apr. 28, 2016, Ont. C.A., John Laskin J.A., S.E. Pepall J.A., and David Brown J.A., CA C60909) 265 A.C.W.S. (3d) 830. Constitutional Law CHARTER OF RIGHTS Application that name "Domestic Violence Court" be deemed invalid dismissed Applicant was charged with as- saulting his son based on allega- tion made by boy's mother. One of conditions of applicant's bail was that applicant not attend mother's house. Applicant attended house

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