Law Times

Law Times • sepTember 26, 2016 Page 13 www.lawtimesnews.com 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 Civil Procedure CLASS ACTIONS Judge ordered there must be at least one publicly identified class representative Federal government depart- ment, HC, sent plaintiffs and other participants in Marijuana Medical Access Program in- formation in envelope marked, "Marijuana Medical Access Program." Two anonymous plaintiffs brought action against HC alleging breach of contract, negligence, breach of confi- dence, intrusion on seclusion, publicity to private life, and breach of right to privacy under ss. 7 and 8 of Canadian Charter of Rights and Freedoms. Plain- tiffs brought motion for order certifying action as class pro- ceeding on behalf of all partici- pants who received envelopes. Motion judge granted certifica- tion, subject to amendment of Charter-based claim and nam- ing of at least one, publicly-iden- tified class representative, hold- ing that plaintiffs had pleaded more than sufficiently to raise matter of bad faith and malice, that class was not overly broad, that common issues would move litigation forward, and that class action was preferable procedure. HC appealed; plain- tiffs cross-appealed. Appeal al- lowed in part; certification or- der confirmed with respect to negligence and breach of con- fidence only; all other causes of action dismissed; cross-appeal dismissed. Motions judge made no palpable and overriding er- ror in ordering that there be at least one named plaintiff in ad- dition to anonymous ones. An- onymity of class representatives was at odds with their responsi- bilities to represent class mem- bers' interests under R. 334.16(1) (e)(i) of Federal Courts Rules (Can.). Ability to communicate with representative plaintiffs was crucial to class members' ability to decide whether or not to opt out and to decide whether representative plaintiffs were suitable. There was no evidence that there was nobody willing to identify himself or herself pub- licly as representative of class; several class members appeared in media self-identifying as medical marihuana users and/ or producers. R. v. John Doe (June 24, 2016, F.C.A., C. Michael Ryer J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-343-15) Deci- sion at 257 A.C.W.S. (3d) 528 was reversed. 268 A.C.W.S. (3d) 753. Federal Court Employment PUBLIC SERVICE Grievance procedure provided only forum in which plaintiff could seek relief Plaintiff was former federal public servant. During his em- ployment plaintiff complained about his performance rating. Plaintiff asserted he and Assis- tant Deputy Minister (ADM), Human Resources verbally agreed that his performance rat- ing would be changed for better and he would receive same per- formance rating for next year if he received positive reviews. In return plaintiff was to resign from public service by specified date. ADM, Human Resources denied agreeing to terms. Plain- tiff 's performance rating did not change. Plaintiff 's grievance was denied. Plaintiff referred grievance to Public Service La- bour Relations Board. Board denied grievance and rejected allegation that plaintiff 's treat- ment amount to bad faith or disguised discipline. Plaintiff 's application for judicial review was granted and redetermina- tion of grievance resulted in fa- vourable decision. Plaintiff filed application for judicial review asserting that decision-maker failed to deal with allegations of bad faith and damage to his reputation. Plaintiff claimed damages asserting actions of official in processing his griev- ance constituted misfeasance in public office. Defendant as- serted court did not have ju- risdiction to adjudicate claim. Defendant brought motion to strike statement of claim. Mo- tion granted. Claim was struck in its entirety without leave to amend. Grievance procedure in Public Service Labour Relations Act (Can.) provided only forum in which plaintiff could seek re- lief. Plaintiff 's bald allegations of bad faith, malice and corrup- tion did not bring his claim out- side scope of grievance process. Price v. Canada (Attorney General) (June 10, 2016, F.C., Simon Fothergill J., T-87-16) 268 A.C.W.S. (3d) 866. Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Investigator failed to conduct sufficiently thorough investigation Employee filed complaint with Canadian Human Rights Com- mission (CHRC) alleging she was harassed and discriminated against in workplace by employ- er's chief of staff on basis of her age, sex, and marital status. In- vestigator found alleged harass- ment had occurred based on inappropriate behavior by chief of staff. CHRC released inves- tigation report recommending that Tribunal commence in- quiry into complaint. Employer brought application for judicial review of decision of CHRC to request inquiry into complaint. Application granted. Investiga- tor failed to conduct sufficiently thorough investigation, render- ing it clearly deficient. Investiga- tor failed to interview chief of staff or any other employees who were still working for employer, or interview individuals present at meeting involving employee and chief of staff at which it was alleged harassment took place. Investigator did not turn mind to question of whether harassment had been reported by employee to her supervisors, or whether employee's anxiety and emotional distress resulted from alleged harassment, or if there were adverse consequenc- es of unrelated issues. Matter was to be returned to investiga- tor for redetermination. Southern Chiefs Organiza- tion Inc. v. Dumas (July 20, 2016, F.C., Alan S. Diner J., T-1612-15) 268 A.C.W.S. (3d) 831. Tax Court of Canada Aboriginal Peoples EXEMPTION FROM TAXATION Taxpayer did not qualify for exemption with respect to bonuses Taxpayer and her spouse owned and operated construction company. During relevant pe- riod, taxpayer was status Indian and was entitled to tax exemp- tion under Indian Act (Can.) in respect of personal property situation on reserve. Her spouse was not, and was not entitled to tax exemption. Construction company employed up to 50 in- dividuals on various construc- tion sites, and almost none of sites were located on reserves. Spouse worked on construc- tion sites and taxpayer worked in company office which was located on reserve. Company paid regular remuneration to taxpayer and spouse and paid balance of its annual income to taxpayer in form of year end bonuses. For income purposes, company claimed deductions for regular pay and bonuses and these deductions were al- lowed by Minister. Taxpayer claimed tax exemptions with respect to her regular pay and bonuses and Minister allowed exemption with respect to reg- ular pay and disallowed exemp- tion with respect to bonuses. Taxpayer appealed. Taxpayer did not qualify for exemption with respect to bonuses. Ap- peal allowed only with respect to issues agreed between par- ties. For purposes of appeal property at issue was remuner- ation from employment. Tax- payer already received adequate compensation for her employ- ment in form of biweekly pay. Bonuses were not entitlement from reserve land by virtue of taxpayer's employment because there was no substantive con- nection between land and bo- nuses. It was abusive of exemp- tion to allow taxpayer to receive bonuses exceeding reasonable remuneration. Company un- dertook transaction having ap- pearance of strong connection between bonuses and employ- ment. In reality, there was no substantive connection. There was no evidence to support that bonuses were reasonable remuneration or that bonuses were intended by parties to rea- sonably compensate taxpayer for her duties of employment. Taxpayer received remunera- tion through her bi-weekly pay that was roughly equivalent to spouse's remuneration except for 2008 when her pay exceeded that of her spouse. In order for bonuses to be reasonable, tax- payer should have made greater contribution to company than her spouse but evidence did not support this. Taxpayer played administrative role with respect to construction contracts with CASELAW 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. 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