Law Times

PAGE 14 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. COURT OF APPEAL FEDERAL Employment Insurance OVERPAYMENTS Applicant applied for judicial review of umpire' 194 days of school year and salary should be attributed to those days Teachers only required to work Canada employment insur- ance commission ruled that ap- plicant school teacher received overpayment of employment insurance (EI) maternity ben- efits. Commission decided that combination of EI benefits and salary top-up paid to applicant by employer under collective agreement, SEB, exceeded nor- mal weekly earnings by $452. Commission ruled that excess constituted earnings and re- duced amount of EI benefits to which she was otherwise entitled and resulted in weekly overpayment of $452. Appli- cant appealed to board of ref- erees. Board allowed appeal. Commission appealed. Umpire held that board erred in law when it allowed applicant' s decision. peal. Application granted. Ap- plicable standard of review was correctness. Collective agree- ment that governed applicant' s ap- employment only required teachers to work 194 days of school year and salary should be attributed to those days. Normal weekly earnings should be calculated by dividing appli- cant' s plying that amount by five days of working week. On that basis, EI maternity benefits and SEB did not exceed normal weekly earnings. No part of SEB con- stituted earnings for purpose of s. 35 of Employment Insurance Regulations (Can.). There was no overpayment of EI benefits. Umpire committed error in law s salary by 194 and multi- in allowing commission's ap- peal. Chaulk v. Canada (Attorney General) (June 22, 2012, F.C.A., Evans, Dawson and Mactav- ish JJ.A., File No. A-65-11) 218 A.C.W.S. (3d) 100 (20 pp.). FEDERAL COURT Applicant applied for judicial re- view of assistant commissioner' Grievance procedure adequate alternative remedy Administrative Law JUDICIAL REVIEW decision. Applicant was RCMP officer. Investigation began aſter it was believed that applicant was conducting himself in dis- graceful manner, which could discredit force. Applicant was caught stealing on tape. Theſts occurred inside police station. Applicant took money from inside desk or jackets of other R.C.M.P. officers. Applicant was suspended with pay. Assistant commissioner recommended applicant' s allowances. Applicant claimed he was suffering from post- traumatic stress disorder. Ap- plication dismissed. Applicant did not properly avail himself of remedies available to him under grievance procedure provided for in s. 31 of Royal Canadian Mounted Police Act. Grievance process would allow applicant to fully present case and seek broader range of remedies. If grievance was denied applicant could then seek judicial review. Grievance procedure was ad- equate alternative remedy that applicant had yet to fully avail himself of before coming to court. Application for judicial review was premature. Holdenried v. Canada (Attorney General) (June 12, 2012, F.C., Pinard J., File No. T-966-11) 218 A.C.W.S. (3d) 206 (19 pp.). s stoppage of pay and These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Immigration Application for judicial review of decision applicants inadmis- sible as result of misrepresen- tation. Family members spon- sored applicants, father, mother and daughter, citizens of Philip- pines, for permanent INADMISSIBLE AND REMOVABLE CLASSES Lack of disclosure could not be viewed as innocent or inadvertent status in Canada. Daughter had no children at time application documents originally submit- ted in 2008, but gave birth to two children prior to issuance of permanent residence visa in October 2010. Daughter dis- closed birth of first child in medical form submitted in early 2010, but never disclosed birth of second child and never re- ported change in family status in application documents. When applicants arrived in Canada in January 2011, immigration au- thorities reported applicants had directly or indirectly misrepre- sented or withheld material in- formation by failing to disclose existence of two minor children. Immigration and Refugee Board noted daughter' resident close children closed off avenue of investigation that may or may not have affected application. Board found father and mother complicit and declared all three inadmissible pursuant to s. 40 of Immigration and Refugee Protection Act (Can.). Applica- tion dismissed. Assessment of misrepresentation under s. 40 involved questions of mixed fact and law reviewable on stan- dard of reasonableness. Appli- cants had duty to be forthright in dealings with immigration authorities. Nothing unreason- able in board' s failure to dis- disclosure could not be viewed as innocent or inadvertent. Dis- closure upon arrival in Canada not sufficient. Not like cases in which change in family status re- s conclusion lack of ported prior to issuance of visa. Gatue v. Canada (Minister of Cit- izenship and Immigration) (June 12, 2012, F.C., Boivin J., File No. IMM-6326-11) 218 A.C.W.S. (3d) 162 (16 pp.). ONTARIO CIVIL CASES Application was for appoint- ment of succeeding estate trust- ee. Applicants were to receive costs of $20,000 from estate. Respondents were to receive costs of $15,000 from estate. Ap- plicants sought leave to appeal. Motion was dismissed. Judge fixed costs in accordance with consent order of parties. Judge could not be faulted for ap- proach to task of fixing costs. As- sessment of reasonable costs was not to be taken as making policy decisions. Applicants were not denied due process. Applicants had more than ample oppor- tunity to make submissions to court. Carfagnini v. Carfagnini Estate (June 29, 2012, Ont. S.C.J. (Div. Ct.), Perell J., File No. 2357/76) 218 A.C.W.S. (3d) 8 (8 pp.). Assessment of costs not to be taken as making policy decisions Civil Procedure COSTS Plaintiff was injured while ski- ing. Plaintiff sued manufacturer of skis and bindings, and store that sold and installed equip- ment. Plaintiff claimed one of bindings unexpectedly released causing plaintiff to crash. Skis, boots and bindings were tested. Defendant store brought mo- tion for order permitted further testing and inspection of ski binding. Motion was dismissed holding that prejudicial effect of testing outweighed probative Value of testing outweighed prejudicial destructive effect DISCOVERY value. Master found there was not direct expert evidence to substantiate need for such test- ing. Master found defendant' technician was not qualified to recommend or conduct testing. Appeal was allowed. Testing was granted. While destructive ef- fect of testing was real value of testing outweighed prejudicial effect. Before balancing proba- tive value and prejudicial effect, master was required to deter- mine whether there was reason- able possibility test would reveal something useful for trier of fact. Without doing so master could not have properly conducted balancing analysis. Master exer- cised discretion based on wrong principle. Master required direct expert evidence to substantiate need for further testing. All that was required to make order for inspection was that it appeared necessary for proper determina- tion of issue in proceeding. Mas- ter misapprehended evidence. Hough v. Amer Sports Canada Inc. (July 19, 2012, Ont. S.C.J., Goldstein J., File No. 08-CV- 350045PD3) 218 A.C.W.S. (3d) 38 (7 pp.). s Show cause hearing deter- mining whether or not lawyer should be found in contempt of court. Lawyer was counsel for someone charged with sexual assault. Matter was set for full day preliminary inquiry. Lawyer nor his client appeared. Lawyer had history of mismanaging his court schedule. Lawyer was ad- vised that he would be required to attend before court and show cause as to why he should not be held in contempt. Lawyer was not found to be in contempt. Evidence did not establish ba- sis for contempt finding. Both negligence on part of lawyer but not deliberate or intentional Documentation showed Contempt of Court GROUNDS November 12, 2012 • Law Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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