Law Times

Page 14 September 12, 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. Federal Court of Appeal Immigration JUDICIAL REVIEW Certified questions did not comply with s. 74 of Immigration and Refugee Protection Act (Can.) Applicants came from Hunga- ry, claiming refugee protection on basis of persecution based on their Roma ethnicity. Refu- gee Protection Division of Im- migration and Refugee Board rejected claim, concluding that discrimination suffered by ap- plicants did not reach level of persecution and that applicants did not rebut presumption that state protection was adequate. Applicants' application for ju- dicial review was dismissed. Applicants appealed on two certified questions. Appeal dismissed. First question, as to whether Board erred if it con- cluded state protection was adequate while failing to deter- mine operational adequacy of protection measures introduced in democratic state, should not have been certified. It was not determinative of issue because, as application judge found, Board did consider adequacy of state protection. First certified question arose from applica- tion judge's incorrect interpre- tation of current jurisprudence as potentially imposing onus on Board to demonstrate op- erational adequacy of recent measures adopted by Hungary to protect Roma citizens. Cases did not stand for that principle. Question was somewhat theo- retical and more in nature of reference, which was prohib- ited. It was also not of general importance because law on this issue was well settled. Second question, whether refugee pro- tection claims were required to complain to policing oversight agencies in democratic state as requirement of assessing state protection, also should not have been certified. Requirement of going to oversight agency in specific country was heavily fact driven and so was not of gen- eral application. There was no legal question to be answered. Board's reasons pertaining to oversight agencies were obiter dicta because there was find- ing of fact that police's response was adequate, and so certified question did not arise in this case. Certified questions did not comply with requirements of s. 74 of Immigration and Refugee Protection Act (Can.). Mudrak v. Canada (Minis- ter of Citizenship and Immi- gration) (June 14, 2016, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., A-147-15) Decision at 249 A.C.W.S. (3d) 848 was affirmed. 268 A.C.W.S. (3d) 408. Labour Relations ARBITRATION Adjudicator had duty to apprise parties that interpretation not contemplated by them was being considered Applicant grievor was required by employer to travel internation- ally to carry out systems repairs on ship. Employer paid applicant for hours travelled at double time rate, under clause 17.03(a) of col- lective agreement governing compensation for days on which employees travelled but did not work, leading to total amount of pay equating to 22 hours straight time. Applicants argued that he was entitled to pay for 15 additional hours under clause 17.03(d) of collective agreement, governing travel pay where em- ployees travelled overnight and no sleeping accommodation was required, while employer believed he was only entitled to seven more hours. Applicants' grievance was dismissed on basis that applicant was only entitled to compensation under clause 17.03(d) and not under clause 17.03(a) of collective agreement. Applicants applied for judicial review. Application granted. Ad- judicator ignored parties' com- mon interpretation of clause 17.03(a) of collective agreement and shared view that issue to be determined was how much ad- ditional compensation he could receive under clause 17.03(d) of agreement. Adjudicator had duty to apprise parties that he was considering interpretation of clause 17.03 of collective agree- ment that neither party had con- templated. Applicants and em- ployer had no indication what- soever that their common and accepted interpretation could be questioned. Procedural fairness dictated that they should have been put on notice and afforded opportunity to address issue and adduce evidence to counter adju- dicator's interpretation of clause 17.03(d) of collective agreement. Since collective agreement gov- erned relationship between par- ties, it was critical that parties be afforded opportunity to be heard since they must live by terms of their contract. Both parties had vital interest in adjudicator's in- terpretation of their collective agreement. Adjudicator came to different interpretation of clause 17.03(d) without any input from parties on how that interpreta- tion could possibly impact on application of clause 17.03 gener- ally. As matter of procedural fair- ness, parties should have been given opportunity to present arguments and adduce evidence on such determinative issue. Arsenault v. Canada (At- torney General) (June 14, 2016, F.C.A., Wyman W. Webb J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-436-15) 268 A.C.W.S. (3d) 431. Federal Court Aboriginal Peoples SELF-GOVERNMENT Status quo from before invalid election took place was to be maintained Appeal tribunal upholding deci- sion to dismiss councillors from their office as members of First Nation council and banned each from running for nomination in election for chief and council. Councillors applied for judicial review of tribunal's decision. Application granted. Applicable standard of review was correct- ness. Court's intervention was warranted and judicial review was proper forum for challeng- ing tribunal's decision. Tribunal acted outside its jurisdiction un- der Sturgeon Lake First Nation Election Act, 2009 in rendering its decision removing council- lors, banning them from run- ning in election and determin- ing that they committed corrupt practice. Election having taken place was precondition to tribu- nal having jurisdiction to hear matter, and tribunal acted with- out authority as no election had taken place when it reached its decision. Tribunal acted beyond its jurisdiction in failing to abide by provisions that granted and restricted its power to act. Coun- cillors were prematurely re- moved from positions and were unlawfully prevented from run- ning in election. Tribunal's deci- sion was procedurally unfair, as councillors were not given notice or provided with opportunity to address allegations against them prior to decision purporting to remove them from office. In ex- ceptional and complex situation, appropriate remedy was to quash decision removing councillors and banning them from partici- pating in election, quash results of election, and order First Na- tion to institute election as soon as reasonably possible. Status quo from before invalid election took place was to be maintained, with councillors continuing to hold office. Parenteau v. Sturgeon Lake First Nation Appeal Tribunal (May 12, 2016, F.C., Michael D. Manson J., T-489-16) 268 A.C.W.S. (3d) 251. Ontario Civil Cases Bankruptcy and Insolvency COURTS AND PROCEDURE Motion judge found that defendants' claim was not personal and vested in trustee Defendants entered into fran- chise agreement and sublease to operate store with plaintiff cor- porations. Defendants operated store for just under two years, when they abandoned prem- ises and claimed rescission under Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.). Plain- tiffs brought action for sum of $77,112 for arrears of rent and damages for breach of franchise agreement and sublease. Defen- dants filed statement of defence and counterclaim. Defendants brought motion for summary judgment dismissing plaintiffs' claim and granting judgment in favour of defendants for sum of $156,392 for rescission of fran- chise agreement. Motion judge dismissed defendants' motion. Motion judge found that defen- dant P, which owned 60 per cent of defendant corporation, had made assignment in bankruptcy after action was commenced but before statement of defence and counterclaim were filed. Motion judge found that defendants' claim was not personal in nature and vested in trustee in bank- ruptcy. Motion judge held that statement of defence and coun- terclaim was nullity. Defendants appealed. Appeal quashed. Order The annual Canadian Lawyer Corporate Counsel Survey canadianlawyermag.com/surveys In-house counsel – weigh in on your relationship with external law firms. SURVEY IS OPEN AUGUST 15 - SEPTEMBER 12 LEGAL OPINIONS WANTED! Untitled-7 1 2016-09-06 10:02 AM

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