Law Times

Page 14 June 26, 2017 • Law Times www.lawtimesnews.com CASELAW Appeals. KH, DH, and G were members of First Nation (FN) that was holding election. Elec- toral officer (EO) determined KH was ineligible to run for of- fice due to violation of election regulations. DH received four votes less than least successful candidate but EO determined there would be no recount. KH appealed to FN's Election Ap- peal Committee from EO's in- eligibility determination and in relation to eligibility of other candidates, but EO determined his appeal would not be heard. DH appealed to committee in relation to numerous voting ir- regularities and eligibility of candidate W, and G appealed to committee in relation to one voting irregularity and eligibili- ty of candidates W and C. Com- mittee, with EO as chairman, only considered eligibility of W and C at appeal hearing held in major city away from FN, and appeals were dismissed. KH, DH, and G brought application for judicial review. Application granted; matter remitted for redetermination. EO had him- self determined which appeals would be heard, so there was breach of procedural fairness in not having notices of appeal de- termined in whole by commit- tee. Importance of committee to governance of FN could not be overstated, and it remained for majority of committee to make decisions regarding ap- peals. Since EO had determined KH's appeal would not proceed, it was also noted that it would seem obvious to most observers that you should not sit in appeal of your own decision. Location of hearing did not give rise to procedural unfairness since committee could set out its own rules and procedure, location was within range of reasonable- ness, it was not known why wit- nesses had not attended, and witnesses' failure to attend did not in itself render hearing pro- cedurally unfair. Hamelin v. Sturgeon Lake Cree Nation (2017), 2017 Car- swellNat 722, 2017 FC 163, Glennys L. McVeigh J. (F.C.). Human Rights PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Complainant's allegation of personal harassment substantiated but not allegation of racial discrimination Fairness. 40-year-old applicant was of Iranian descent and was long-term employee of respon- dent. Applicant made com- plaint to respondent that he was being harassed by supervisor, and respondent found super- visor engaged in hostile and unprofessional behaviour, and required him to attend leader- ship training. Applicant filed second complaint that super- visor ignored him, demeaned him, and made him feel incom- petent. Respondent investigated and concluded applicant's alle- gation of personal harassment was substantiated but there was no racial discrimination, facilitated apology and discus- sion, and ultimately terminated supervisor's employment when his behaviour did not improve. Applicant made complaint to human rights commission that he was discriminated against based on race, ethnic origin and age, and that respondent treated him in adverse manner and failed to provide harassment- free workplace. Investigation was conducted and commission found further inquiry into com- plaint was not warranted. Ap- plicant brought application for judicial review of decision dis- missing his compliant. Appli- cation dismissed. There was no evidence on record supporting applicant's allegation investiga- tor was biased and prejudged issue, and applicant never raised contention of bias earlier, so could not do so now. Investiga- tor refused to review audio re- cordings of conversations with witnesses, on basis there was no way to authenticate voices and context. This rationale was not reasonable, as applicant could have provided context and iden- tified voices, and investigator could have spoken to identi- fied individuals. Tapes were not obviously critical evidence, as they were very brief and ap- plicant summarized them in his submissions. Investigator did not interview two witnesses identified by applicant because existence of harassment was not at issue, and applicant did not identify other evidence they could have provided. Applicant was able to make submissions and arguments to commission, and there was no unfairness and no investigative f laws so funda- mental they could not be rem- edied by his submissions. Majidigoruh v. Jazz Avia- tion LP (2017), 2017 Carswell- Nat 887, 2017 FC 295, Anne L. Mactavish J. (F.C.). Immigration and Citizenship CITIZENSHIP Grant of citizenship Citizenship judge failing to adequately address important issues Egyptian family consisting of mother, daughter and son ap- plied for citizenship. With re- spect to son, citizenship judge found him to be credible and concluded that son met test for citizenship as he demonstrated residence in Canada for requi- site number of days. Minister of Citizenship and Immigration applied for judicial review. Ap- plication granted. Citizenship judge failed to address critical issues and to explain reason- ing. Citizenship judge failed to adequately address impor- tant issue of son's undeclared marriage or to enquire how he could have married in ten-day period he was out of Canada. While explanation might exist, none was given, and citizen- ship judge never pursued sig- nificance of marriage to mat- ter of residence and likelihood that ten-day absence was only absence from Canada. Failure to inquire into important issue was compounded here by unde- clared child and absence of any explanation for not declaring child. Citizenship judge failed to consider potential impact real explanation might have on residency analysis. Citizenship judge failed to assess impor- tance of Cairo address on son's Egyptian passport, particularly in light of fact that son's wife and child apparently resided in Cairo. Citizenship judge ap- peared to equate son's business activities with proof or resi- dency but it was unreasonable to draw conclusion of Cana- dian presence and/or residence from business records. To ex- tent citizenship judge relied on evidence from son's father given in separate proceeding, that was error when evidence was not put to son. There were significant gaps in decision, decision was not reasonable in all of circumstances, and it was quashed. Canada (Minister of Citi- zenship and Immigration) v. Mahrous (2017), 2017 Carswell- Nat 1524, 2017 FC 400, Michael L. Phelan J. (F.C.). Maritime and Admiralty Law SHIPS Seizure and execution Plaintiff marina operator selling defendant's vessel f loat home for unpaid moorage fees Claim for damages. Plaintiff operated marina and entered moorage agreement with de- fendant regarding his registered vessel f loat home. There were repeated instances of defendant not paying monthly moorage and other fees in timely fashion, so plaintiff charged penalties. After last demand letter and defendant's complete cessa- tion of payment, plaintiff hired bailiff to recover monies owing but was largely unsuccessful. Plaintiff obtained injunction permitting marshall to take possession of vessel. Defendant represented he would remove vessel, so plaintiff incurred costs of preparing dock, and then defendant did not, so ves- sel was sold in situ and $132,172 was paid into court. Plaintiff brought motion for summary judgment for $17,025 dam- ages for amounts owing under moorage agreement and costs of bailiff and preparing dock. Mo- tion granted in part; plaintiff awarded $14,990. Apart from $100 NSF charge, plaintiff 's 2016 spreadsheet accurately portrayed mooring, hydro and related tax charges from 2012 onward, but plaintiff was neg- ligent in its invoicing practices, causing much confusion to de- fendant. Plaintiff improperly applied increased late payment charges before giving notice of increase and applied them inconsistently throughout. De- fendant was responsible for not continuing to pay moorage and hydro charges as they accumu- lated, and while he was in ar- rears and continuing to live in vessel, despite invoicing con- fusion. Defendant's refusal to pay was based on his incorrect assumption he was not cred- ited with payments, and he also appeared to be committed to evading hydro charges and in financial difficulty. While late charges were warranted, plain- tiff 's failure to provide clear and concise statements exacerbated conf lict, and their real purpose appeared to be bargaining chip to encourage defendant to pay fees owing, so were not allowed. Plaintiff was entitled to $8,694 in fees owing under agreement and, as debt claim was mostly sustained, there was no basis to deny $3,998 and $2,298 claims for bailiff and dock preparation, respectively. Moray Channel Enterprises Ltd. v. Gordon (2017), 2017 Car- swellNat 771, 2017 FC 250, Peter Annis J. (F.C.). Tax Court of Canada Tax INCOME TAX Administration and enforcement Minister awarded costs after taxpayer failing to appear at status hearing Taxpayer's appeal from reas- sessments was dismissed due to his failure to appear at status hearing. Taxpayer's application to set aside dismissal was dis- missed. Costs submissions re- ceived. Minister awarded costs in amount of $19,689. Minister was entirely successful in ap- plication, relating to significant amount of money as underlying appeal involved approximately $1.165 million. Amount of work involved in application was not significant and issues were nei- ther complex nor of any broad- er importance. Taxpayer was responsible both for delaying hearing of application and for unnecessarily extending hear- ing itself. Taxpayer's conduct during application, seeking re- peated adjournments shortly before scheduling hearing, gave impression of intentional delay and abuse of court's goodwill. Taxpayer's conduct during un- derlying appeal strongly rein- forced impression of intentional delay, as everything about his conduct screamed of some- one who desperately wanted to delay resolving tax problem. Taxpayer's lack of communica- tion with counsel led to lack of preparation that extended dura- tion of proceedings. Four-day hearing of this application was extraordinarily long, as such applications normally took no more than one day. Taxpayer's conduct significantly affected duration of proceedings. Tax- payer was not credible and, as great deal of time was wasted proving that he had received communications that he denied receiving, hearing would have been much quicker if he had admitted truth. Considering all factors and particularly taxpay- er's conduct, award of costs in excess of tariff was appropriate. Figure proposed by Minister was entirely reasonable. Wolsey v. R. (2017), 2017 CarswellNat 688, 2017 TCC 34, David E. Graham J. (T.C.C. [General Procedure]); addi- tional reasons (2016), 2016 Car- swellNat 5312, 2016 TCC 236, David E. Graham J. (T.C.C. [General Procedure]). Ontario Civil Cases Administrative Law PREREQUISITES TO JUDICIAL REVIEW Jurisdiction of court to review Examining board not entitled to grant fifth opportunity to prospective pharmacist to write licensing exam Applicant A was prospective pharmacist. Respondent exam- ining board would not grant A 5th opportunity to write licens- ing examination. A applied for judicial review of board's deci- sion. Application dismissed. Decision of board was not re- viewable. Board did not violate any of its own processes, but only set out limit for writing ex- amination at 4 attempts. Board was not empowered to grant A 5th attempt. Aljawhiri v. Canada (Phar- macy Examining Board) (2017), 2017 CarswellOnt 6270, 2017 ONSC 2609, Kiteley J., Tay- lor J., and Matheson J. (Ont. Div. Ct.). Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Impossible to certify class action against American defendants Plaintiffs B and P were two former junior hockey players, who played in defendant league based in both Ontario and two U.S. states. B and P claimed that league and its defendant mem- ber clubs had violated employ- ment law, by not paying them at least minimum wage. B and P proposed class action, on be- half of three classes of players based in Ontario, Michigan and Pennsylvania. League and clubs claimed that B and P were not proper representative plain-

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