Law Times

Administrative bodies must listen to tribunals BY ALEX ROBINSON Law Times T he Federal Court of Ap- peal has ruled that ad- ministrative bodies must abide by the decisions of tribunals that regulate them unless certain exceptions apply. In Canada (Attorney Gener- al) v. Bri-Chem Supply Ltd., the court found the Canadian Interna- tional Trade Tribunal's decision to uphold the ability of importers to correct customs declarations to get better tariff treatment was reason- able, as the tribunal had already ruled on the issue. In 2015, the CITT found that the Canada Border Services Agen- cy, which oversees the tariff re- gime, had committed an abuse of process for failing to apply an ear- lier decision, Frito-Lay, to three separate instances of importers who found themselves in the same position. "After the release of Frito-Lay and following the discontinuance of the appeal from it, the CBSA took administrative positions con- trary to it without explanation, justification or action of the sort required," Justice David Stratas wrote in the Federal Court of Ap- peal decision. The court upheld the tribunal's finding of an abuse of process, say- ing the CBSA failed to argue what might be wrong in the Frito-Lay and effectively re-litigated issues the tribunal had already ruled on in the hope of a different outcome. "Tribunal proceedings are not a game of roulette where a player, having lost, can just hope for better luck and try again," Stratas wrote. He added that administrators must "go further than just a mod- est modifying or small supple- menting of earlier submissions." Lawyers say the decision provides a helpful framework that sets out when administrators are required to comply with earlier rulings, and the limited basis upon which those decisions can be revisited. "It provides a nice road map as DISMISSAL DAMAGES Ruling punishes employer P7 FOCUS ON Business of Law P8 See CITT's, page 2 PM #40762529 $5.00 • Vol. 27, No.38 November 28, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Christopher Wirth says a recent decision provides a 'road map' when it comes to re- litigating issues before a tribunal. OCL UNDER FIRE Custody battles prolonged by poor reports? P5 BY ALEX ROBINSON Law Times T he Divisional Court has ordered the Ministry of the Attorney General to release a set of draft guidelines for prosecuting HIV non-disclosure cases. An assistant Crown attorney developed the guidelines in the unprecedented 2009 case of John- son Aziga, an HIV-positive man who was convicted of first-degree murder for failing to disclose his status when he had unprotected sex with two women. The guidelines were shared throughout the province with Crowns involved in HIV pros- ecutions and uploaded to their intranet, says Toronto lawyer Mar- cus McCann, who sought the doc- ument as part of a larger Freedom of Information request. The ministry refused to grant McCann's request, arguing the guidelines were subject to solici- tor-client privilege, but the Infor- mation and Privacy Commission- er sided with McCann. "The fundamental unfairness that motivated me was that MAG has been able to avoid disclosure of this document simply by allowing Crowns to use this document cre- ated off the side of the desk with- out adopting it as official policy," McCann says. MAG sought judicial review of the privacy commissioner's deci- sion, but it was recently rejected by the Divisional Court. The privacy commissioner, and later the Divisional Court, deter- mined that solicitor-client privi- lege had actually been waived by the assistant Crown attorney who developed the draft guidelines, as they had been shared with a pro- gram manager with the Sexual Health and Harm Reduction of the City of Hamilton. MAG said the document was shared with the official in order to get her "expert input, advice and assistance in relation to legal ad- vice" in the guidelines, and it said that her input was necessary in order to ensure the document was accurate. MAG also argued that the commissioner erred by failing to consider whether the ministry and See Wide, page 2 Marcus McCann says if a set of draft guidelines for prosecuting HIV non-disclosure cases is released, it could help those being prosecuted understand how the Crown approaches the matter. Photo: Robin Kuniski Guidelines on prosecuting HIV non-disclosure to be released MAG must release document, rules court Integrated Legal Marketing Solutions LawyerMarketingCanada.com/solutions Put Your Digital Marketing Tactics into High Gear Untitled-4 1 2016-11-22 9:00 AM & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM

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