Law Times

Law Times • OcTOber 16, 2017 Page 13 www.lawtimesnews.com CASELAW Federal Court of Appeal Labour and Employment Law LABOUR LAW Unfair labour practices Union's decision not to defer grievance to arbitration not violating s. 37 Canada Labour Code Section 37 of Canada Labour Code prohibited trade union from acting in manner that was arbitrary, discriminatory or in bad faith in its representation of bargaining unit member. Can- ada Industrial Relations Board dismissed applicant's application under s. 37 of Code. Applicant brought application for judicial review. Application dismissed. Nothing unreasonable was seen in board's decision. Board wrote fulsome and well-articulated reasons, applied its settled case law to assessment of respondent union's conduct, and there was ample basis on record before it from which it could reasonably conclude that union had not vio- lated its obligations under s. 37 of Code. Materials before board provided it with solid basis from which to conclude that union had demonstrated that it fairly, honestly and without discrimi- nation assessed merits of appli- cant's grievance and concluded that it had little chance of suc- cess. Union also demonstrated that it had represented appli- cant in disciplinary process and grievance procedure. Union did not err in filing grievance con- testing applicant's dismissal as opposed to challenging alleged constructive dismissal because appropriate grievance in cir- cumstances was one contesting dismissal. It was open to board to find that union's decision not to refer grievance to arbitration and union's treatment of applicant did not violate s. 37 of Code. Chin Quee v. TC, Local 938 (2017), 2017 CarswellNat 1822, 2017 FCA 62, D.G. Near J.A., Donald J. Rennie J.A., and Mary J.L. Gleason J.A. (F.C.A.). Law Enforcement Agencies PARTICULAR POLICE AND SECURITY FORCES Royal Canadian Mounted Police There were grounds to consider officer may not be "suitable" for position as member of RCMP Employee, probationary regular member of RCMP, copied as- signments, accessed police da- tabase for personal use, and lied about having done certain work. Three breaches of Code of Con- duct were confirmed and ad- ditional concerns arose. Formal disciplinary action was com- menced under Pt. IV of Royal Canadian Mounted Police Act (Act), but hearing under Pt. IV was never initiated. Employee was dismissed as unsuitable un- der Pt. V of Act. Decision was confirmed by Probationary Re- view Officer. In Officer's view, employee was aware of duties he was to perform as well as ex- pected standards; despite this he repeatedly failed to perform duties in manner fitted to re- quirements of his position. Em- ployee's application for judicial review was granted by Federal Court. Federal Court character- ized main issue on whether offi- cer breached procedural fairness by deciding that employee could be discharged under Part V of Act on standard of correctness. Attorney General of Canada ap- pealed. Appeal allowed. Federal Court mischaracterized main issue before it and applied wrong standard of review. Officer's statutory interpretation of Act was reasonable. End result of interpretation adopted was that probationary member was treat- ed same way as all other mem- bers of RCMP unless, because of repeated failures to perform in manner fitted to his duties dur- ing first two years on force, and having benefited from RAGS, there were grounds to consider that he may not be "suitable" for position as member of RCMP. Officer gave sufficient reasons for his conclusion; this was par- ticularly when one considered officer's ultimate conclusion that it was impossible for RCMP to teach level of honesty and integ- rity required to person who did not have values to start with. Canada (Attorney General) v. Herrera-Morales (2017), 2017 CarswellNat 3678, 2017 FCA 163, M. Nadon J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 1867, 2016 CarswellNat 2859, 2016 FC 578, 2016 CF 578, E. Heneghan J. (F.C.). Tax INCOME TAX Employment income Judge favouring English over French violating official language rights Proceedings were triggered by Canada Revenue Agency de- termination that individual did not hold insurable employment. Minister of National Revenue' s determination was challenged successfully by individual before Tax Court of Canada (TCC). Individual, who was self-repre- sented before TCC, submitted his notice of appeal in English. Insurance company (employer) submitted its notice of interven- tion in French. Language issues arose when counsel for insur- ance company indicated that his first witness, M, would be tes- tifying in French. In response, individual clearly indicated he would need interpreter; instead, judge granted break for counsel to devise pragmatic compro- mise, which he accepted. Coun- sel proposed that M testify in English, and he be permitted to express himself in French on technical issues, which could be translated in English. Insurance company appealed TCC deci- sion. Appeal allowed. Constitu- tional and quasi-constitutional official language rights of wit- nesses, counsel, as well as indi- vidual's rights were all violated in course of hearing before TCC; it was unnecessary to determine whether individual was engaged in insurable employment. In ac- cepting compromise, TCC judge failed to uphold his positive duty to ensure that witnesses were heard in official language of their choice. Another violation of official language rights re- sulted from Judge's treatment of witness, C, who expressed desire to speak in French. Judge inter- rupted witness examination to request that it be conducted in English; rather than acceding to C's request asking to reply in French, as required, judge fo- cused on individual's inability to understand French. During course of proceedings before TCC, counsel and other wit- nesses were treated similarly and were denied their right to choose to speak in French because of their English language skills. In conducting proceedings, judge favoured English over French in order to accommodate in- dividual's limited understand- ing of French; this resulted in violation of counsel's and wit- nesses' official language rights. Judge exerted subtle pressure on counsel and witnesses to forego their right to speak in official language of their choice. Efforts of judge to be pragmatic in find- ing ways around adjourning and securing interpretation services resulted not only in violation of official language rights of indi- vidual, counsel and witnesses. Judge's failure to exercise his duty to ensure that official lan- guage rights at issue were pro- tected not only resulted in their violation, but further resulted in delays that could have otherwise been avoided by adjournment to secure proper interpretation services. Industrielle Alliance, Assur- ance et Services Financiers inc. v. Mazraani (2017), 2017 Car- swellNat 1457, 2017 Carswell- Nat 1458, 2017 FCA 80, 2017 CAF 80, Johanne Gauthier J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 1132, 2016 CarswellNat 7151, 2016 TCC 65, 2016 CCI 65, Pierre Ar- chambault J. (T.C.C. [Employ- ment Insurance]). Federal Court Civil Practice and Procedure PARTIES Vexatious proceedings / Abuse of process Plaintiff declared vexatious litigant for bringing repetitive, nonsensical, offensive claims Plaintiff initiated three proceed- ings related to constitutional challenges to medicinal mari- juana regulatory system that were stayed or dismissed, and one claim that challenged pro- hibition on magic mushrooms. Plaintiff initiated six actions that alleged mistreatment by court due to plaintiff 's incarceration and inability to self-medicate with controlled substances, which were struck as disclosing no reasonable cause of action. Three costs orders made against plaintiff remained unpaid. Plaintiff brought three claims that attempted to impugn ap- pointment of Supreme Court of Canada judge; two were struck as disclosing no reasonable cause of action, and third led to this 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. 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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