Law Times

PAGE 14 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. COURT OF APPEAL FEDERAL Employment EMPLOYMENT STANDARDS Referee' Appeal by employer from deci- sion allowing application for judicial review of referee' s analysis based on incorrect premise properly set aside sion respecting payment order. Employer provided security ser- vices to Halifax airport pursuant to contract with airport author- ity. Contract was entered into on basis that they would be governed by provincial legislation respect- ing employment standards. During term of contract, Canada Industrial Relations Board certi- fied Public Service Alliance of Canada as bargaining agent of employer' s deci- International Airport. Employee filed complaint, claiming he was not being paid for overtime or holiday pay in accordance with standards in Canada Labour Code ("CLC"). Inspector issued payment order. Referee allowed appeal of payment order, con- cluding that application of CLC to be suspended and employ- ment contracts to be governed by Labour Standards Code (N.S.) ("LSC"), until existing contract expired, at which time CLC would govern. Application judge concluded that referee exceed- ed jurisdiction in suspending application of CLC. Appeal dis- missed. Referee' s employees at Halifax unreasonable and was prop- erly set aside. Referee' sis based on incorrect premise that employer was subject to provincial jurisdiction up until moment that that jurisdiction ousted by assertion of federal jurisdiction. As board found, contract employees of employer provided services which were vital and integral to operation of s decision was s analy- airport. During currency of con- tract, employer therefore subject to federal labour relations juris- diction respecting operations and undertaking at airport. LSC never applied to employees of employer performing services at airport under contract. Crouse v. Commissionaires Nova Scotia (Jan. 10, 2012, F.C.A., Noel, Dawson and Trudel JJ.A., File No. A-63-11) Decision at 198 A.C.W.S. (3d) 678 was affirmed. 213 A.C.W.S. (3d) 111 (11 pp.). Employee was absent from work for medical reasons. Employee filed grievance for employer' Employee's resignation was term of settlement agreement Employment Insurance DECISIONS OF UMPIRE refusal to pay short term illness and injury benefits. There was settlement agreement. Employee was required to resign. Board concluded sums received for relinquishment of right to rein- statement were not deduct- ible earnings. Umpire affirmed board' s paid by employer to employee were paid in consideration for employee relinquishing right to reinstatement. Application for judicial review was allowed. Umpire erred in failing to cor- rect board error. Employee was not wrongfully dismissed. Employee' s decision that moneys of settlement agreement. Right to reinstatement did not arise and was not negotiable. Board considered return to status quo was equivalent to right to rein- statement which was not so. Board' s resignation was term ous interpretation of law to facts rendered decision unreasonable. Canada (Attorney General) v. Warren (Mar. 6, 2012, F.C.A., Blais C.J., Evans and Layden- Stevenson JJ.A., File No. A-280- 11) 213 A.C.W.S. (3d) 116 (7 pp.). s application of errone- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Social Welfare Applicant left full-time employ- ment for health reasons. Applicant was denied disability benefits under Canada Pension Plan. Board concluded appli- cant did not establish applicant' reasonableness of board's conclusion CANADA PENSION PLAN Criticisms did not undermine medical condition was severe in that condition made applicant incapable regularly of pursuing substantial gainful employment whether full-time or part-time. Applicant argued board there were seven reports Board either ignored, attached too much weight s misinterpreted. Application for judicial review was dismissed. Criticisms either individually or collectively did not under- mine reasonableness of board' to, misunderstood or ultimate conclusion. On basis of evidence board could reason- ably find applicant did not prove applicant suffered continuous- ly from severe and prolonged medical condition from speci- fied date that prevented appli- cant from engaging in substan- tially gainful employment. Simpson v. Canada (Attorney General) (Mar. 8, 2012, F.C.A., Blais C.J., Evans and Layden- Stevenson JJ.A., File No. A-197- 11) 213 A.C.W.S. (3d) 223 (6 pp.). s Taxation Appeal by taxpayer from deci- sion of Tax Court of Canada dismissing appeal from reas- sessment that disallowed gam- bling losses and associated expenses in income tax returns for 2002 and 2003 on ground that gambling activities did not constitute a business. Taxpayer gambled because he loved thrill of gambling. Taxpayer had little Taxpayer's gambling activities did not constitute a business INCOME TAX by way of systematic system for gambling and spent no time on practicing his skills especially after he switched principal gam- bling from horse racing to slots and casino. Appeal dismissed. Judge applied correct legal test. Taxpayer' bling together with degree in mathematics including prob- ability theory insufficient to demonstrate that s experience with gam- palpable and overriding error on evidence when he concluded taxpayer' judge made did not constitute a business. Tarascio v. Canada (Jan. 26, 2012, F.C.A., Evans, Sharlow and Layden-Stevenson JJ.A., File No. A-228-10) 213 A.C.W.S. (3d) 234 (5 pp.). s gambling activities COURT OF CANADA SUPREME Evidence Accused charged with sex- ual assault. It was alleged that accused inserted wine cork in complainant' Conviction admissible as evidence linking accused to prior offence SIMILAR FACTS years earlier accused convicted of inserting plastic bags in wom- an' dence of earlier assault as similar fact evidence. Trial judge refused to permit accused to challenge correctness of conviction on similar fact voir dire. Evidence admitted and accused convict- ed. Court of Appeal upheld con- viction. Appeal dismissed. Trial judge entitled to use conviction for earlier offence as conclusive evidence that accused commit- ted it for purposes of admis- sibility voir dire. Conviction was admissible as evidence link- ing accused to prior offence. Accused persons should be per- mitted to challenge correctness s vagina. Crown tendered evi- s vagina. Twelve of prior convictions on similar fact voir dires only in rare situ- ations where convictions had been overturned or undermined by fresh evidence. R. v. Jesse (Apr. 27, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33694) Decision at 86 W.C.B. (2d) 969 affirmed. 100 W.C.B. (2d) 164 (46 pp.). Fish, Abella, FEDERAL COURT Civil Procedure Defendants brought motion to strike out portions of amended statement of claim. Paragraphs were struck out without leave to amend. Plaintiffs did not seek leave to amend and there was nothing to suggest plaintiffs could establish scintilla of cause of action in relation to portions of claim that were struck out. Defendants' motion was not premature. There was no obliga- tion on defendants to demand particulars. Impugned portions of amended statement of claim was little more than bald accu- sations. Plaintiffs' accusations against Minister of Foreign Affairs were nothing more than speculative allegations and con- clusions unsupported by mate- rial facts. Claim did not dis- close sufficient material facts to establish and support cause of action against Minister or how Minister could be vicariously liable. Plaintiffs did not plead or factually substantiate essential elements of tort of negligence. Conspiracy claim was deficient with respect to pleading ele- ments of conspiracy. Claim of Impugned portions of statement of claim little more than bald accusations COMMENCEMENT OF PROCEEDINGS June 18, 2012 • Law Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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