Law Times

Page 14 September 5, 2016 • Law timeS 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 Agriculture ASSISTANCE PROGRAMMES Quebec farm producers were not entitled to additional compensation Quebec farm producers con- tested decisions made by public body that administered pro- gram designed to protect them from income f luctuations. Pro- ducers particularly challenged calculation method chosen by public body. Producers argued program was contract of insur- ance and had to be interpreted on basis of their reasonable ex- pectations as insured persons. Trial judge allowed their action, characterizing program as con- tract of insurance and ordering public body to pay them sub- stantial additional compensa- tion. Court of Appeal set aside that judgment, finding that pro- gram was not contract of insur- ance and that impugned deci- sions were reasonable. Producers appealed to Supreme Court of Canada. Appeal dismissed. Pro- gram in question could not be considered simply government program that was governed by public law. It had several features that justified considering it to be contract. However, program was not contract of insurance but simply innominate contract under the civil law. It could not be subject to rule of interpreta- tion based on reasonable expec- tations of insured that applied to contract of insurance as defined in Civil Code of Québec. For purpose of determining com- pensation payable to its partici- pants, program gave public body discretion to determine how to calculate any other income they have received from government sources. Public body exercised that discretion in accordance with requirements of good faith and contractual fairness. There- fore, producers were not entitled to amounts they claim. Ferme Vi-Ber inc. c. Finan- cière agricole du Québec (July 29, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Wagner J., Gas- con J., and Côté J., 36205) Deci- sion at 251 A.C.W.S. (3d) 370 was affirmed. 268 A.C.W.S. (3d) 9. Federal Court of Appeal Administrative Law FREEDOM OF INFORMATION Certain requested records were protected by litigation privilege Document requester and his pa- per mill were charged with 13 vi- olations of Fisheries Act (Can.). All charges were ultimately de- clared nullities. Requester and company commenced action against federal government and others alleging fraud, conspiracy and perjury. Requester submit- ted request under Access to In- formation Act (Can.) (AIA) for all documents from, to, or creat- ed by Crown prosecutor, G. Fed- eral government provided num- ber of documents but claimed various exemptions, including litigation privilege. Requester's application for judicial review was dismissed by Federal Court (FC) judge who held, among oth- er things, that certain portions of documents were protected by litigation privilege. Requester appealed. Appeal dismissed. FC judge did not err in deciding that certain records were protected by litigation privilege. Majority of withheld records (or portions thereof ) were communications either to or from counsel with Department of Justice (DOJ) or law firm defending requester's civil claim which discussed civil litigation. Since civil lawsuit was currently before court, litiga- tion was still alive and litigation privilege still existed and ap- plied. Records created in course of prosecution but intertwined with discussions of civil claim were also protected from disclo- sure by litigation privilege. Ex- emptions claimed under s. 23 of AIA were correctly invoked and DOJ reasonably exercised dis- cretion not to disclose withheld portions. Blank v. Canada (Minis- ter of Justice) (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., C. Michael Ryer J.A., and Yves de Montigny J.A., A-378-15) Deci- sion at 256 A.C.W.S. (3d) 505 was affirmed. 268 A.C.W.S. (3d) 2. Parole REVOCATION Application for judicial review of pardon revocation was granted Accused pleaded guilty to driv- ing with excessive alcohol. As result, Parole Board revoked par- don granted to accused in 2011 for conspiring in 2007 to export pseudoephedrine without ex- port permit on ground that he was no longer of good conduct. Accused's application for judi- cial review of Board's decision, challenging its legality was dis- missed. Accused appealed. Ap- peal allowed. Judge's decision was annulled, accused's application for judicial review was granted, and matter was to be referred to Board for reconsideration. Board could not have reasonably con- cluded that there was convincing evidence that accused ceased to behave well because his behav- iour has required intervention of police forces and court for of- fence under s. 255 of Criminal Code. Board's conclusion was more surprising when one con- sidered that Board had in its file no indication of any particular circumstances whatsoever re- garding police involvement in matter, and that accused pleaded guilty and therefore did not abuse judicial resources. Board did not conduct investigation and did not try to get details about cir- cumstances surrounding com- mission of offence, to establish whether in fact accused's behav- iour was able to endanger lives of others. Letter inviting accused to comment was not precise enough to let him know he could and/or should provide all explanations of circumstances surrounding commission of offences, as well as his good behaviour during nine previous years. In absence of such information on file, Board could not concluded there existed con- vincing evidence that accused's behaviour could be associated with marked disregard for pub- lic safety and that he endangered life of public. Board should have conducted particularized analy- sis of circumstances surrounding commission of offence and any other information related to ac- cused's lifestyle. Y. (M.) c. Canada (Pro- cureur général) (June 7, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Mon- tigny J.A., A-371-14) Decision at 116 W.C.B. (2d) 31 was reversed. 131 W.C.B. (2d) 49. Federal Court Air Law AIRPORTS Aeronautics Act (Can.) conferred broad discretion to grant, refuse, suspend or cancel security clearance In 2008, after obtaining necessary security clearance and restricted area identity card ("RAIC"), ap- plicant began employment at terminal of international airport. In January 2015, however, Trans- port Canada advised applicant security clearance was being re- viewed as result of information received through law enforce- ment record check. It appeared applicant's former spouse, with whom she shared joint custody of two children, was full patch member of Hells Angels, had been affiliated with gangs since 2002 and had been charged with (but not convicted of) several criminal offences including as- sault, uttering threats and posses- sion of scheduled substance. Ap- plicant was afforded opportunity to provide information or expla- nation, including with respect to any extenuating circumstances, on two occasions but denied op- portunity for in-person meeting. Ultimately, Transportation Se- curity Clearance Advisory Body determined she had failed to provide sufficient information to dispel concerns raised by record check. Minister of Transport's delegate cancelled applicant's se- curity clearance on basis there was reason to believe, on balance of probabilities, she may be prone or induced to commit, or assist or abet another individual to commit, act that may unlawfully interfere with civil aviation. Ap- plicant's employment terminated as result of decision. Applicant brought application for judicial review on basis decision both unreasonable and procedurally unfair. Application denied. Sec- tion 4.8 of Aeronautics Act (Can.) conferred on Minister broad dis- cretion to grant, refuse, suspend or cancel security clearance nec- essary to obtain RAIC. Minister entitled to take in to account any factor he or she considered rel- evant including criminal charges that did not result in conviction irrespective of whether person charged was holder of security clearance or close associate. Min- ister's delegate had been satisfied applicant was aware of former spouse's criminal involvement prior to end of marriage, raising concerns about her judgment, 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-6 1 2016-08-30 1:45 PM

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