Law Times

Law Times • OcTOber 3, 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 Crown DISCOVERY Canadian Security Intelligence Service Act provided that identity of human sources be confidential Respondents brought action claiming damages arising from alleged breach of rights and freedoms protected under Ca- nadian Charter of Rights and Freedoms. Attorney General of Canada brought applications pursuant to s. 38 of Canada Evidence Act (CEA). Amended s. 18.1 of Canadian Security In- telligence Service Act (CSISA) provided that identity of hu- man sources, or information that would disclose identity of human sources, was to be kept confidential. Federal Court judge concluded that applica- tion of s. 18.1 of CSISA in cir- cumstances of case would be in- valid. Attorney General of Can- ada appealed. Appeal allowed. Section 18.1 of CSISA was not intended to have retroactive ef- fect. Section 18.1 was not merely procedural rule of evidence but it created substantive right in favour of human sources based on status of individuals and spe- cial relationship with Canadian Security Intelligence Service, and it trumped public interest in disclosure of all evidence by taking it out of Federal Court jurisdiction under s. 38 of CEA. Once individual met criteria set out in s. 2 of CSISA he or she was source and kept status on ongoing basis, and presump- tion against retrospective ap- plication of statutory provisions under review was not in play. Section 18.1 of CSISA deprived respondents of benefit of more liberal versions of privilege set out in s. 38 of CEA. Legislature intended to protect disclosure of information described in s. 18.1 of CSISA in all proceedings. Presumption against interfer- ence with vested rights was re- butted, and s. 18.1 of CSISA was applicable to s. 38 proceeding. Canada (Attorney General) v. Almalki (July 8, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-520-15) Decision at 261 A.C.W.S. (3d) 102 was reversed. 269 A.C.W.S. (3d) 71. Environmental Law ENFORCEMENT Canada did not fulfill obligation to consult aboriginal peoples to reasonable satisfaction Applicants were several ab- original bands and others who opposed pipeline development Joint Review Panel found that project was in the public in- terest and recommended that it go forward subject to 209 conditions. Two certificates of public convenience and neces- sity were issued. Several appeals and applications for judicial re- view regarding various aspects of proceedings were brought, and were consolidated into single application. Application granted. Order in council was reasonable and defensible, how- ever, Canada did not fulfill its obligation to consult aboriginal peoples to standard of reason- able satisfaction. Good faith was shown and proper framework was put in place for consulta- tion but consultation aspect of process fell short. Order in council was quashed as well as certificates that were issued un- der them, and matter remitted. Governor in council's determi- nation was reasonable in light of administrative law principles. Government did not prejudge result of process, and bias on part of governor in council was not shown. Framework of con- sultation process was not unilat- erally imposed on first nations. Level of funding provided con- strained participation in joint review process, but there was no evidence that funding avail- able was so inadequate it made process unreasonable. Canada fell well short of its deep duty to make reasonable efforts to inform and consult. Canada as- sessed strength of claim of cer- tain bands, but acted improper- ly in failing to share assessment with affected first nations. Not all items of interest were dis- cussed in consultation process. During consultation meetings, aboriginal groups were repeat- edly told that Canada's rep- resentatives were working on assumption that governor in council needed to make its deci- sion by particular date, and were tasked with information gather- ing, and were not authorized to make decisions. Requirement to give adequate reasons was not shown to be met. Gitxaala Nation v. R. (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and C. Michael Ryer J.A., A-437- 14, A-56-14, A-59-14, A-63-14, A-64-14, A-67-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517- 14, A-520-14, A-522-14) 269 A.C.W.S. (3d) 85. Industrial and Intellectual Property PATENTS Motion for order dismissing applicant's appeal as moot was granted Applicant drug company ap- plied for order under Patented Medicines (Notice of Compli- ance) Regulations (Can.) pro- hibiting Minister of Health from issuing notice of compli- ance to respondent drug com- pany for its pharmaceutical product. Application was dis- missed and applicant appealed. After dismissal, Minister issued notice of compliance. Respon- dent brought motion for order dismissing applicant's appeal as moot. Motion granted. Appeal was moot, there was no longer live controversy. Order prohib- iting Minister from issuing no- tice of compliance would serve no purpose as she had already issued notice of compliance. Discretion against continuance of appeal was exercised. Au- thorities all said that in matter arising under Regulations, ap- peal from denial of prohibition should not be entertained where patentee can bring action for patent infringement and can as- sert its patent against s. 8 claim. Fact that s. 8 claim was on table was not principled basis for dis- tinguishing these authorities and did not answer objection that hearing and determining appeal would be inconsistent with judicial economy. Amgen Canada Inc. v. Apo- tex Inc. (July 15, 2016, F.C.A., Marc Noël C.J., David Stra- tas J.A., and Donald J. Rennie J.A., A-501-15) Decision at 260 A.C.W.S. (3d) 839 was appeal dismissed as moot. 269 A.C.W.S. (3d) 154. Federal Court Arbitration DISQUALIFICATION OF ARBITRATOR Canada Labour Code was silent on issue of withdrawal of complaint Employee filed complaint under Canada Labour Code alleging he was dismissed without cause from his employment as com- munity support worker devel- opment coordinator with em- ployer. Seven days of hearings took place over span of one year. By August 2014, adjudicator had all material necessary to render decision. Employer contacted adjudicator in May 2015 and on July 13, 2015 seeking deci- sion but none was forthcoming. Adjudicator responded, noting that determination on merits was made some time ago, but that his reasons needed to be amplified given recent decision of Federal Court of Appeal. On July 14, 2015 employee with- drew complaint, intending to pursue civil action. Employer opposed withdrawal of com- plaint given that determination had already been made on mer- its. Adjudicator advised that he was functus officio and did not have jurisdiction to determine if employee could withdraw com- plaint. Employer brought appli- cation challenging adjudicator's decision to accept employee's withdrawal of his complaint. Application dismissed. Code was silent on issue of withdraw- al of complaint, and did not ex- plicitly convey whether or not adjudicator's broad discretion to control its procedure conferred on adjudicator power to disal- low unilateral withdrawal of complaint. In absence of direc- tion on issue of withdrawal, em- ployee was entitled to withdraw complaint by providing proper notice to adjudicator and ensur- ing affected parties were noti- fied. Once employee had done so, adjudicator's jurisdiction to act was exhausted. If employee pursued civil action, employer could raise forum shopping and issue estoppel with court. Inter Tribal Health Author- ity v. Sinclair (June 1, 2016, F.C., Michael D. Manson J., T-1609-15) 269 A.C.W.S. (3d) 82. Civil Procedure TRIAL Applicant did not demonstrate that introduction of new evidence was in interest of justice Corporate respondent en- tered into set of agreements 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. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-2 1 2016-09-28 11:19 AM

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