Law Times

Page 14 November 13, 2017 • Law Times www.lawtimesnews.com CASELAW Supreme Court of Canada Privacy and Freedom of Information FEDERAL PRIVACY LEGISLATION Miscellaneous Documents relied on to process Indian residential schools claims to remain confidential In response to number of indi- vidual and class actions brought by survivors of residential schools, Government of Canada established voluntary alterna- tive dispute resolution ("ADR") process to compensate survivors. Indian Residential Schools Settle- ment Agreement ("IRSSA") was reached and, under Independent Assessment Process ("IAP"), for- mer students who were survivors of abuse resulting in serious psy- chological consequences could bring claims forward. Each claim- ant provided narrative in first person and outlined his or her re- quest for compensation in accor- dance with IRSSA. Requests for directions was sought on dispo- sition of IAP Documents and on development of notice program to inform claimants of possibility of voluntarily archiving some of their IAP Documents at National Research Centre for Truth and Reconciliation ("NCTR"). Super- vising judge concluded that court should exercise its jurisdiction to order destruction of IAP Docu- ments. Church defendants ap- pealed; Attorney General of Can- ada cross-appealed. Appeal and cross-appeal dismissed but super- vising judge's order was varied. Attorney General of Canada ap- pealed. Appeal dismissed. There was evidence that IAP would not have achieved its purpose but for promise of absolute confidenti- ality. Amount of compensation depended on number of "Com- pensation Points" applicable to proven acts of abuse and resulting harm that they established. Re- luctance on part of claimants to undergo questioning by adjudica- tor on these topics without assur- ances of absolute confidentiality was fully understandable. IRSSA did not expressly provide dispo- sition for IAP decisions, beyond stating that claimants will receive redacted copy. Necessary impli- cation was that other copies of de- cisions would not be preserved or eventually archived. Application of Privacy Act to IAP Documents clearly ran counter to principles of confidentiality and voluntariness upon which IAP was founded. Retention in National Archives was inconsistent with absolute level of confidentiality that parties intended for these documents. IAP claimants still had possibil- ity to archive their records with NCTR if they wished to do so. Supervising judge's order was not precluded by operation of Library and Archives of Canada Act or any other legislation. Canada (Attorney General) v. Fontaine (2017), 2017 Car- swellOnt 15406, 2017 Carswel- lOnt 15407, 2017 SCC 47, 2017 CSC 47, McLachlin C.J.C., Kara- katsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellOnt 4938, 2016 ONCA 241, G.R. Strathy C.J.O., Robert J. Sharpe J.A., and J. MacFarland J.A. (Ont. C.A.). Federal Court of Appeal Administrative Law PRACTICE AND PROCEDURE Practice on appeal Confidentiality order rescinded as information relating to harassment complaint no longer confidential Complainant alleged harass- ment against member of Cana- dian Radio-television and Tele- communications Commission (Commissioner). Investigator upheld complaint. Commis- sioner successfully applied for judicial review. Confidentiality order made on consent of par- ties was rescinded by judge at hearing. Attorney General ap- pealed regarding confidentiality order. Appeal dismissed as moot. Information Attorney General sought to keep confidential was no longer confidential. Judge's decisions clearly identified com- plainant, alleged harasser and others who appeared before in- vestigator. As Attorney General did not seek stay of judge's order on confidentiality, there was no longer any live issue before court. Canada (Attorney General) v. Shoan (2017), 2017 Carswell- Nat 4475, 2017 FCA 192, M. Na- don J.A., Stratas J.A., and Webb J.A. (F.C.A.); appeal dismissed as moot (2016), 2016 CarswellNat 5291, 2016 CarswellNat 5578, 2016 FC 1003, 2016 CF 1003, Russel W. Zinn J. (F.C.). Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Approvals, licences and orders Ministry of environment not owing chemical company duty of fairness Respondent ministry of environ- ment proposed addition of chem- ical produced by applicant com- pany G, to toxic substance list. G filed notice of objection, and requested that board of review be convened. Ministry refused this request, stating that there was no new scientific evidence to change their assessment. G ap- plied for judicial review, but was unsuccessful. G appealed from judicial review decision. Appeal dismissed. G was not owed duty of fairness by ministry. G's inter- ests were not compromised by non-production of later study. Is- sue was at best premature. G was not deprived of any opportunity to make submissions. Minister used discretion properly, and did not fail to use proper test. Any new evidence did not contradict conclusions previously arrived at. Goodyear Canada Inc. v. Canada (Environment) (2017), 2017 CarswellNat 3185, 2017 FCA 149, David Stratas J.A., Donald J. Rennie J.A., and J. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2115, 2016 Carswell- Nat 2737, 2016 FC 466, 2016 CF 466, James W. O'Reilly J. (F.C.). Federal Court Immigration and Citizenship ADMISSION Immigrants Contact between applicant and same-sex partner not giving rise to conjugal relationship Applicant was citizen of Kenya who came to Canada and was granted protection on ground of sexual orientation. Appli- cant was granted permanent residence. As part of applica- tion, applicant identified K as same-sex partner. Visa officer interviewed K and found K did not meet definition of common- law partner or conjugal partner. Applicant brought application for judicial review. Application dismissed. Evidence support officer's finding that K was at boarding school when rela- tionship commenced and only saw applicant during summer months. Evidence of contact between applicant and K since 2014 was limited and insuffi- cient to demonstrate consistent ongoing communication. Of- ficer found that while relation- ship existed, it did not rise to level of conjugal relationship. That was not unreasonable con- clusion where officer noted that K was school-aged girl and at- tending boarding school at time applicant remained in Kenya. Njoroge v. Canada (Minis- ter of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 773, 2017 FC 261, Patrick Gleeson J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Supply Registrant making self-supply of addition to facility required to include HST return on self-supply Registrant owned and operated 56-bed facility nursing home. Of those beds 45 were operated for Nova Scotia Department of Health (department), 10 for De- partment of Veteran Affairs; and one respite bed. In 2007, depart- ment sought proposals regarding provision of long-term nursing care. Registrant made proposal of providing 20 additional beds and proposal was accepted. As result registrant constructed 20-bed ad- dition to its facility with 2010 oc- cupancy. Under Excise Tax Act, registrant was considered to have made self-supply of addition to facility and was required to in- clude in its Harmonized Sales Tax (HST) return (output) tax on self- supply. Registrant alleged HST on self-supply should be equal to applicable rate of tax multiplied by fair market value of property. Registrant filed its return for 2010 accordingly. In period and prior reporting periods, registrant claimed input tax credits (ITCs) with respect to construction of addition to facility. Cumulatively, ITCs claimed were greater than amount of output tax reported on self-supply. Minister of National Revenue (Minister) alleged regis- trant could not receive overall net tax refund of HST with respect to addition because s. 191.1 of Act applied (section prevented overall net tax refund on self-supply by 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. 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-1 1 2017-11-07 8:49 AM

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