Law Times

Law Times • January 30, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Appeal by teachers' union was allowed Defendant Crown in Right of Province amended schools leg- islation ("Old Act"), barring plaintiff teachers' union from collectively bargaining certain elements of their working condi- tions, including class sizes, with school boards. Plaintiffs brought successful application for decla- ration that Old Act amendments were unconstitutional as they impaired plaintiffs' right to free- dom of association. Crown took no action within mandated one- year period and amendments became inoperative. Legislature enacted substantially identical provisions to ones declared in- operative ("New Act"). New Act provisions were found by trial judge to be unconstitutional and of no force or effect from point of enactment. Crown appealed successfully. Majority of Court of Appeal found that legislation was constitutional. Court of Ap- peal found that trial judge's find- ing that Province did not consult in good faith was based on legal error. Court of Appeal found that pre-legislative consultations were relevant at infringement stage of constitutional analysis in freedom-of-association cases, and that trial judge erred on this issue. Court of Appeal found that pre-legislative consultations were not required to be with govern- ment acting as employer, and that trial judge erred in finding oth- erwise. Court of Appeal found that Province consulted in good faith, and that consultations and collective bargaining undertaken were adequate. Dissenting judge for Court of Appeal found that trial judge's finding that passage of the bill was unconstitutional should be upheld. Dissenting judge found that trial judge was entitled to consider substantive reasonableness of Province's ne- gotiating position. Dissenting judge found that pre-legislative consultation could be replace- ment for traditional collective bargaining process, but only where it was meaningful, and that parties had to negotiate from approximate equality. Dissenting judge found that trial judge made no appealable error in finding that government consulted in bad faith. Plaintiffs appealed de- cision of Court of Appeal. Appeal allowed, substantially for reasons of dissenting judge in Court of Appeal. BCTF v. British Columbia (2016), 2016 CarswellBC 3739, 2016 CarswellBC 3740, 2016 SCC 49, 2016 CSC 49, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gas- con J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellBC 1113, 2015 BCCA 184, Bauman C.J.B.C., Donald J.A., Newbury J.A., Saunders J.A., and Harris J.A. (B.C. C.A.). Federal Court of Appeal Communications Law REGULATION OF RADIO AND TELEVISION Broadcasting licence Broadcasting licences of aboriginal broadcaster were revoked Canadian Radio-television and Telecommunications Commis- sion ("CRTC") revoked broad- casting licences of aboriginal broadcaster because of lack of financial viability. Broadcaster appealed from CRTC order. Ap- peal dismissed. CRTC adequate- ly considered extent to which CRTC's Native Radio Policy affected broadcaster. While ac- knowledging broadcaster had to act as not-for-profit organiza- tion under Policy, CRTC found broadcaster was not allocating sufficient resources to vital ele- ments such as programming, sales and marketing. CRTC ad- equately considered broadcaster's proposed business plan but found it did not contained type and level of detail necessary to establish viability. CRTC properly found broadcaster failed to report suf- ficient number of news stories of direct and particular relevance to aboriginal community. Doctrine of legitimate expectations could not act to fetter or restrict power conferred on CRTC to revoke broadcasting licence. Each radio station was found to be non-com- pliant with conditions of licence. Aboriginal Voices Radio Inc. v. Canada (Attorney Gen- eral) (2016), 2016 CarswellNat 5793, 2016 FCA 275, Eleanor R. Dawson J.A., D.G. Near J.A., and Judith M. Woods J.A. (F.C.A.). Human Rights PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Commission's decision was not unreasonable Complainant alleged that she had been subject to harassment and discrimination on basis of race, national or ethnic origin, and colour in course of her employ- ment with respondent. Investiga- tor concluded that harassment likely did not occur. Canadian Human Rights Commission dis- missed complaint, finding that evidence before it did not support complainant's allegations against her employer and that further inquiry was not warranted. Com- plainant's application for judicial review was dismissed. Federal Court judge found that investiga- tor adequately identified various allegations made by complainant and that evidence was insuffi- cient to support them. Judge re- viewed both investigator's report and Commission's decision, and determined that investigator did not deny complainant procedural fairness and that her allegations were without merit. Judge fur- ther found that Commission's decision was not unreasonable in light of evidence gathered by investigator. Appeal by complain- ant dismissed. Judge made no re- viewable error either in respect of procedural fairness issue or with regard to reasonableness of Com- mission's decision. Investigator concluded that complainant had not provided any evidence to sup- port her allegation that she had been treated in differential man- ner by her three supervisors; and similarly, that she did not provide any evidence to support allegation that she was not provided with harassment-free environment. Miakanda-Batsika v. Bell Canada (2016), 2016 Carswell- Nat 5905, 2016 CarswellNat 5906, 2016 FCA 278, 2016 CAF 278, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 6482, 2014 Car- swellNat 6483, 2014 FC 840, 2014 CF 840, George R. Locke J. (F.C.). Immigration and Citizenship EXCLUSION AND REMOVAL Inadmissible classes Refugee Protection Division's decision was confirmed Foreign nationals were citizens of Nigeria. Principal foreign national HM moved to Italy in 1993, gained temporary resident status in 1996, and permanent residence in 2002. HM and fam- ily f led Italy in June 2013, arrived in Canada on July 29, 2013, and claimed refugee protection on August 13, 2013. HM lost his permanent resident status in Italy on June 7, 2014, after being absent from that country for 12 consecutive months. HM's chil- dren held temporary resident permits based on HM's status in Italy. One child lost status on November 27, 2013, and two others on May 31, 2014. On June 25, 2014, Refugee Protection Division (RPD) found that at time of hearing, foreign nation- als had residency status that was substantially similar to that of Italian nationals, and they were therefore excluded from receiv- ing refugee protection pursuant to s. 98 of Immigration and Ref- ugee Protection Act and art. 1E of United Nations Convention Relating to the Status of Refu- gees. Refugee Appeal Division (RAD) confirmed RPD's deci- sion. Federal Court dismissed foreign nationals' application for judicial review. Foreign na- tionals appealed. Appeal dis- missed. Federal Court correctly reviewed RAD's decision on rea- sonableness standard of review. RAD's interpretation of Con- vention was correctly reviewed on reasonableness standard. It was reasonable for RAD to conclude that foreign nationals' status should be considered as of last day of hearing before RPD. RAD was not required to come to its own independent conclu- sion about whether claimant was excluded at time of appeal. Majebi v. Canada (Minister of Citizenship and Immigra- tion) (2016), 2016 CarswellNat 5909, 2016 FCA 274, Eleanor R. Dawson J.A., Near J.A., and Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 18, 2016 CarswellNat 292, 2016 FC 14, 2016 CF 14, Simon Fothergill J. (F.C.). 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 WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. 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