Law Times

PAGE 16 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. FEDERAL COURT Aboriginal Peoples Application for judicial review of council' move chief, or failure to make such a decision. Applicant ar- gued council refused to exercise its jurisdiction and sought or- der removing chief for conflict of interest. Respondent was recognized as First Nation in 2010 and chief was elected at first election. Applicant alleged chief had conflict of interest as he continued to operate two corporations and alleged he was withholding cheques from oil companies. Public meet- ing was held on conflict of in- terest allegations and council commission legal opinions, which concluded there was no evidence to support conflict of interest allegations. Council announced it would wait two weeks before making decision and accept other evidence in meantime. Council had yet to render decision. Application allowed in part. Section 20(1) of Elections By-laws made it clear it was up to council to de- termine whether chief or other member had breached conflict of interest Guidelines and had to be removed. Section 20(2) gave council absolute, unfet- tered discretion. It would be en- tirely improper for court to rule on chief ' even if conflict of interest proven s decision not to re- SELF-GOVERNMENT Council retained discretion cil had not yet made decision. Even if conflict of interest alle- gations were proven, council re- tained discretion. However, ap- plicant and all other members were entitled to decision and it had been almost one year since council committed to rendering one. Order of mandamus war- ranted requiring council to ren- s removal when coun- der decision within one month. Orr v. Alook (May 16, 2012, F.C., de Montigny J., File No. T-1356- 11) 217 A.C.W.S. (3d) 514 (14 pp.). Applicant employed respon- dent. Respondent' COMMISSION/TRIBUNAL Commission did not give proper consideration to fact respondent had retained counsel Human Rights Legislation HUMAN RIGHTS tion for position of operations manager was not successful. Respondent commenced medi- cal leave on basis of severe de- pression as result of not getting position. Parties were unsuc- cessful in negotiating sever- ance package. Applicant made repeated requests for medi- cal assessments to determine whether accommodation was possible. Respondent provided no assessments. Applicant ter- minated respondent' s applica- ment. Commission exercised discretion to deal with respon- dent' s employ- tion on grounds of physical and mental disability. Commission extended one-year filing pe- riod regarding events of 2009 and refused to consider prior allegations. Commission found applicant did not show serious prejudice to ability to respond to complaint as result of delay. Commission determined re- spondent' s complaint of discrimina- plaint was due to respondent's s failure to file com- uncertainty with respect to jurisdictional nature of appli- cant. Application for judicial review was allowed. Commis- sion failed to take into account respondent was represented by counsel at all times. It could not be said respondent was unable to submit complaint in timely fashion for reasons outside re- spondent' sion should have considered entirety of complaint. There s control. Commis- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. was no consideration of nature and seriousness of issues raised in complaint. Respondent was unable to provide justifiable reasons why respondent was unable to bring complaint in timely manner. Commission erred and acted unreasonably in focusing on alleged misun- derstanding of respondent with respect to jurisdictional issues without giving proper consid- eration to fact respondent had retained counsel. 168886 Canada Inc. v. Reducka (May 4, 2012, F.C., de Montig- ny J., File No. T-1081-11) 217 A.C.W.S. (3d) 667 (11 pp.). Administrative Law Board' FETTERING OF DISCRETION Board denied applicant en- titlement to disability pension. Applicant' s findings contradicted critical evidence Further appeal was denied. Ap- plicant' cation was dismissed. Applicant brought application for judicial review. On consent decision was set aside. Pursuant to terms of order applicant' s appeal was denied. s reconsideration appli- tion application was remitted back to different panel of board which denied reconsideration. Application for judicial review was allowed. Board did not in- appropriately fetter discretion. Alleged inadequacy of reasons did not provide basis for inter- vention. Decision was set aside because board' s reconsidera- tradicted critical evidence. In light of requirements of s. 39 of Veteran Review and Appeal Board Act (Can.), conclusion board reached was not reason- ably open to it. Board' s findings con- was unreasonable in its errone- ous conclusion that there was no evidence that treatment applicant received fell below accepted standard. Board' s decision cision was unreasonable in its s de- consideration of s. 39 of Act, which board effectively ignored. Only reasonable conclusion for board was to grant reconsidera- tion and award applicant dis- ability pension. Sloane v. Canada (Attorney General) (May 10, 2012, F.C., Gleason J., File No. T-1737-11) 217 A.C.W.S. (3d) 586 (21 pp.). Respondent sent letter to appli- cant containing sensitive medi- cal information. Copy of letter was sent in error to applicant' No unauthorized disclosure actually resulted from error FREEDOM OF INFORMATION advisor. Respondent sent let- ter to applicant informing ap- plicant of disclosure. Numbers in address on letter were trans- posed. Applicant received letter and another letter was returned to respondent. Applicant claimed respondent disclosed applicant' s tion to third party without ap- plicant' safeguard applicant's personal s medical informa- s consent and failed to information. Commissioner is- sued decision that respondent resolved issues pertaining to safeguards and use and dis- closure complaints. Applicant sought declaration respondent breached Personal Information Protection and Electronic Doc- uments Act (Can.), and fiducia- ry duties. Application was dis- missed. There was no indication applicant' was ever misplaced. Copying letter to advisor would have been acceptable had one sen- tence about applicant' s medical information condition been deleted. Minor breach of Act by addressing let- ter to applicant using incorrect address was of no consequence. No unauthorized disclosure ac- tually resulted from error. Ap- plicant provided no evidence aside from assertions or detailed humiliation suffered as result of respondent' s medical s conduct. Respon- dent did not act in intentional or egregious manner or in any other way indicating complete disregard for applicant' interests. There was no evidence respondent acted in bad faith or benefited commercially from error. Respondent apologized to applicant. Disclosure of per- sonal information was minimal and inaccuracy of applicant' s privacy address caused no injury. It was not necessary to order respon- dent to correct practices or to publish notice of action taken to correct practices. It was not necessary to award damages to applicant. Townsend v. Sun Life Financial (May 8, 2012, F.C., de Mon- tigny J., File No. T-987-11) 217 A.C.W.S. (3d) 516 (14 pp.). s Immigration Application for judicial review of decision of pre-removal risk assessment officer refusing ap- plicant for pre-removal risk assessment. Refugee claim dis- missed on basis that applicant was not credible and was not a homosexual. Letters submitted by applicant were not sufficient to overcome finding applicant was not credible. Application allowed. Decision suggested that applicant might well face persecution or risk in Nigeria if he could establish that he was gay. Treatment of letters un- reasonable. Affidavit spoke to crucial aspects of risk faced by applicant in Nigeria. Whether board found applicant credible or not about his homosexual activities Canada had no bearing on established risk in Nigeria Homosexual activities in EXCLUSION AND EXPULSION bearing on whether affidavit established risk in Nigeria. Affi- davit clearly established that Ni- gerian police were looking for applicant because they believed in Canada had no OctOber 29, 2012 • Law times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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