Law Times

Law Times • November 20, 2017 Page 17 www.lawtimesnews.com CASELAW Supreme Court of Canada Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Minister's decision to approve ski resort not engaging First Nation's freedom of religion First Nation raised concerns about ski resort respondent com- pany sought to build on Q, which was place of spiritual significance for them. Q was home to Grizzly Bear Spirit, principal spirit within First Nation's religious beliefs and cosmology. Consultation ensued, leading to significant changes to original proposal. First Nation adopted position that accommo- dation was impossible because ski resort would drive Grizzly Bear Spirit from Q. Minister of Forests, Lands and Natural Resource Op- erations declared that reasonable consultation had occurred and approved project. First Nation sought to overturn approval by Minister on grounds that project would violate First Nation's free- dom of religion under s. 2(a) of Canadian Charter of Rights and Freedoms and that government breached its duty of consulta- tion and accommodation under s. 35 of Constitution Act, 1982. Chambers judge dismissed peti- tion for judicial review and Court of Appeal affirmed his decision. First Nation appealed. Appeal dismissed. Claim did not engage right to freedom of religion under s. 2(a) of Charter. Minister's deci- sion neither interfered with First Nation's freedom to believe in Grizzly Bear Spirit or their free- dom to manifest that belief. Claim was that s. 2(a) of Charter protect- ed presence of Grizzly Bear Spirit in Q, which would extent s. 2(a) beyond scope recognized in law. Charter protects freedom to wor- ship but not spiritual focal point of worship. Extension of s. 2(a) proposed by First Nation would put deeply held personal beliefs under judicial scrutiny. Minor- ity found that while Minister's decision to approve development of resort infringed First Nation's right to religious freedom, it lim- ited right as little as reasonably possible and amounted to pro- portionate balancing. Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) (2017), 2017 CarswellBC 3020, 2017 CarswellBC 3021, 2017 SCC 54, 2017 CSC 54, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellBC 2215, 2015 BCCA 352, Lowry J.A., Bennett J.A., and Goepel J.A. (B.C. C.A.). Natural Resources OIL AND GAS Constitutional issues Crown may rely on steps taken by administrative body to fulfill its duty to consult Pipeline which cut through C First Nation's traditional terri- tory had been approved and built without consultation with C First Nation. E Inc. applied for approv- al of modification of pipeline. National Energy Board served notice of public hearing. Board approved application. Appeal by C First Nation was dismissed. C First Nation appealed. Appeal dismissed. Crown had obligation to consult with respect to E Inc.'s project application. Crown may rely on steps taken by adminis- trative body to fulfill its duty to consult. Circumstances of this case made it sufficiently clear to C First Nation that Board process was intended to constitute Crown consultation and accommoda- tion. Board's statutory powers were capable of satisfying Crown's constitutional obligations. Board provided C First Nation with adequate opportunity to partici- pate in decision-making process. Board sufficiently assessed po- tential impacts on rights of Indig- enous groups and found that risk of negative consequences were minimal and could be mitigated. Board provided adequate accom- modation through imposition of conditions on E Inc.. Board's written reasons were sufficient to satisfy Crown's obligation. Chippewas of the Thames First Nation v. Enbridge Pipe- lines Inc. (2017), 2017 Carswell- Nat 3468, 2017 CarswellNat 3469, 2017 SCC 41, 2017 CSC 41, McLachlin C.J.C., Abella J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellNat 10332, 2015 CarswellNat 5511, 2015 FCA 222, 2015 CAF 222, Ryer J.A., Webb J.A., and Donald J. Rennie J.A. (F.C.A.). Federal Court of Appeal Civil Practice and Procedure PARTIES Intervenors Provincial A-G granted intervener status on conditions Applicants were aboriginal groups, opposed to expansion of pipeline project by respondent federal government and energy company. Project was approved by tribunal. Groups applied to quash tribunal decision. Timetable was set to expedite matter. Provincial attorney-general did not move to intervene at first instance, al- though another province's A-G did move to intervene. After elec- tion and change of government in province, provincial A-G moved to intervene. Motion was not made until 5 weeks after new gov- ernment was formed. Motion did not explain delay, or set out scope of intervention. Respondents and established intervenor ques- tioned how they could respond to provincial A-G's submissions. A-G moved to intervene in mat- ter. Respondents opposed mo- tion. Motion granted on terms. Scope of intervention was limited. A-G's office appeared to lack un- derstanding of process. Public interest of province's citizens out- weighed procedural problems. Intervention of established inter- venor appeared to benefit respon- dents. Moving A-G appeared to be onside with aboriginal groups. A-G did participate in tribunal proceedings, and was entitled to advance similar position before court. Conditions were neces- sary to regulate intervention. A-G was to file memorandum of no more than 15 pages. A-G was also granted opportunity to make submissions, at length deter- mined by hearing panel. Neither A-G nor established intervenor could make reply submissions to each other. Any reply would have to take place at hearing. Scope of intervention was to be limited to already-established issues. A-G was limited to commenting on other submissions, from perspec- tive of its citizens. Tsleil-Waututh Nation v. Canada (Attorney General) (2017), 2017 CarswellNat 4093, 2017 FCA 174, David Stratas J.A. (F.C.A.). Federal Court Immigration and Citizenship ADMISSION Application for temporary resident or immigrant visa Prior successful judicial review not resulting in findings that needed to be taken into account Refugee claimants were citizens of China who entered Canada together posing as newlyweds. Claimants alleged they were at risk of persecution in China because they were practitioners of Falun Gong. Claimants initially went their separate ways and made sep- arate refugee claims, one of which was denied while other remained outstanding. Claimants entered into relationship at some point, married, and had child in Cana- da. Claimants unsuccessfully ap- plied for permanent residence on humanitarian and compassion- ate (H&C) grounds. Claimants brought application for judicial review. Application dismissed. Immigration officer had not been precluded from rendering H&C decision while one refugee claim was pending, and prior success- ful judicial review of that claim had not resulted in findings that needed to be taken into account. Officer was not required to con- sider, as factor in H&C assess- ment, various potential outcomes of re-determination of that claim. Officer's reasons demonstrated consideration of all factors ad- vanced by claimants in support of their H&C grounds. Officer had also addressed in some detail best interests of child. Officer's deci- sion was intelligible, justified, and transparent and fell within range of possible, acceptable outcomes that were defensible on facts and law. Liang v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 Carswell- Nat 792, 2017 FC 287, Cecily Y. Strickland J. (F.C.). Labour and Employment Law LABOUR AND EMPLOYMENT LAW Miscellaneous Employer had no policies but evidence not supporting conclusion workplace was not free of abuse 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-2 1 2017-11-14 1:19 PM

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