Law Times

Law Times • augusT 8, 2016 Page 13 www.lawtimesnews.com CASELAW 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. Supreme Court of Canada Expropriation VALIDITY Notice of reserve pursuant to Cities and Towns Act (Que.) and Expropriation Act (Que.) was ultra vires province Pursuant to his powers un- der Radiocommunication Act (Can.), minister of industry au- thorized R Inc. to install anten- na system on certain property in respondent municipality for purpose of improving its cellu- lar telephone network. Munici- pality, arguing that health and well-being of people living near such installation would be at risk, adopted municipal resolu- tion authorizing service of no- tice of establishment of reserve (notice of reserve) that prohib- ited all construction on property in issue for two years pursuant to Cities and Towns Act (Que.) and Expropriation Act (Que.). Few days before notice was due to lapse, it was renewed for two additional years. R Inc. filed mo- tion to contest notice. Motion judge annulled notice of reserve and its renewal, as well as resolu- tions on which they were based. Appeal from motion judge's decision was allowed. R Inc. ap- pealed. Appeal allowed. In light of purpose and effects of notice of reserve, its pith and substance was siting of radiocommuni- cation antenna system, which represented exercise of federal jurisdiction. Notice was ultra vi- res province. In circumstances, notice impaired core of federal power over radiocommunica- tion in that it compromised or- derly development and efficient operation of radiocommunica- tion in Canada. In addition, it was inapplicable to R Inc. by rea- son of doctrine of interjurisdic- tional immunity. Rogers Communications Inc. c. Châteauguay (Ville) (Jun. 16, 2016, S.C.C., McLach- lin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36027) Decision at 242 A.C.W.S. (3d) 342 was reversed. 266 A.C.W.S. (3d) 390. Federal Court of Appeal Bankruptcy GENERAL Trustee's application for judicial review was dismissed EB made assignment of proper- ty to trustee under Bankruptcy and Insolvency Act (Can.). EB reported liabilities of $94,652 all of which were debts to credit card companies. R.C.M.P. were informed that EB was prepar- ing to declare bankruptcy and leave country with more than $10,000 in his possession. At airport, on his way to Turkey, EB was stopped by CBSA cus- toms officers. Search revealed that EB had equivalent of CAD 53,157.83, in various currencies. Funds were seized. Minister of Public Safety and Emergency Preparedness declined return of funds seized and forfeited by customs officers from EB in accordance with Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.). Trustee unsuccessfully brought application for judicial review. Trustee appealed. Ap- peal dismissed. Minister's dis- cretion was limited. Only ques- tion that arose under s. 29 of act was whether evidence confis- cated could establish that it was not criminal offence. Bouloud c. Canada (Min- istre de la Sécurité publique et de la Protection civile) (Feb. 8, 2016, F.C.A., Marc Noël C.J., Scott J.A., and de Montigny J.A., A-116-15) Decision at 126 W.C.B. (2d) 371 was affirmed. 129 W.C.B. (2d) 542. Employment Insurance APPEAL Appeal Division's decision was not unreasonable Applicant unsuccessfully ap- plied for employment insurance benefits. Applicant told Canada Employment Insurance Com- mission that he quit his job af- ter only working for matter of days, because he was claustro- phobic and required to work in confined spaces and because he was looked down upon by colleagues. General Division of Social Security Tribunal con- cluded that applicant left em- ployment without just cause within meaning of ss. 29 and 30 of Employment Insurance Act (Can.). Applicant's appeal was dismissed by Appeal Division of Tribunal. Applicant applied for judicial review. Application dis- missed. Appeal Division's deci- sion was not unreasonable. Ap- plicant put forward essentially same arguments that he had submitted to Appeal Division. Role of court was not to reas- sess these arguments but rather to determine whether decision of Appeal Division was reason- ably open to it. Appeal Division found that applicant's working conditions were not so intolera- ble as to leave him no reasonable option but to resign two days af- ter he started. Appeal Division concluded that medical note supporting indicating he had been medically advised to ter- minate employment should be given little weight, as it sought afterwards and did not partic- ularize employment or medi- cal conditions it was referring to. Applicant did not establish these conclusions were unrea- sonable. Hurtubise v. Canada (At- torney General) (May 11, 2016, F.C.A., J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Yves de Montigny J.A., A-471-15) 266 A.C.W.S. (3d) 383. Labour Relations COLLECTIVE AGREEMENT Adjudicator's assessment of extrinsic evidence was not unreasonable Respondent employees had worked as auditors in British Columbia (BC) public service before being transferred to work for applicant employer Canada Revenue Agency (CRA). Col- lective agreement established severance pay entitlement with reference to employee's "contin- uous employment," as defined in CRA's employment policy. Policy defined "continuous em- ployment" as "periods of service in the public service," as defined in Public Service Superan- nuation Act (Can.). Act defined "public service" as employment with federal organization listed in Schedule I of act, and allowed for recognition of service with other organizations in respect of entitlements under act. Adju- dicator of Public Service Labour and Employment Relations Board upheld employees' griev- ances, which sought severance pay based on their years of ser- vice with CRA and in BC pub- lic service. Adjudicator found provisions defining "continu- ous employment" in collective agreement to be ambiguous and had regard to extrinsic evi- dence to interpret term. Adju- dicator found that "continuous employment," with reference to employees' severance pay en- titlements, was to be interpreted as including years of service in BC public service and with CRA. CRA brought application for judicial review. Application dismissed. It was not unrea- sonable to hold that provisions in collective agreement, policy and act were ambiguous, given that policy tied collective agree- ment definition of "continuous employment" to act, and act recognized disputed service for pension purposes. Adjudicator's assessment of extrinsic evidence was not unreasonable. It was open to adjudicator to interpret "continuous employment", for purposes of calculating employ- ees' severance pay entitlement, as including their years of em- ployment in BC public service and with CRA. Canada Revenue Agency v. Clough (May. 11, 2016, F.C.A., Dawson J.A., Rennie J.A., and Mary J.L. Gleason J.A., A-366- 15) 266 A.C.W.S. (3d) 471. DUTY OF FAIR REPRESENTATION Board made reasonable decision that grant of extension of time was not justified Applicant had filed two com- plaints against his union alleging breach of duty of fair representa- tion contrary to s. 37 of Canada Labour Code and prohibition against taking disciplinary ac- tion in discriminatory manner contrary to s. 95 (g). Canada Industrial Relations Board dis- missed applicant's complaints. Board found complaint of breach of duty of fair representa- tion was untimely and that there was no ground for complaint against respondent union as it was not bargaining agent at ma- terial time. Board also found that applicant's seniority appeal was not disciplinary process. Appli- cant did not seek judicial review of that decision. Applicant's re- quest that Board reconsider its decision was denied. Applicant brought application for judicial review of Board's refusal of re- quest for reconsideration. Ap- plication dismissed. Applicant's s. 37 complaints was brought outside of 90-day time limit in REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com &/$)"/$&:063-*45*/(8*5)"(0-%034*-7&31"$,"(& Get noticed by the lawyers, judges, corporate counsel, fi nance professionals and other blue chip cilents and prospects who fi nd the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. Untitled-3 1 2016-07-29 11:57 AM

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