Law Times

Law Times • may 28, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Labour and Employment Law WORKERS' COMPENSATION LEGISLATION Reinstatement Duty to accommodate applies when interpreting and applying provisions of Quebec's injured worker legislation Duty to accommodate. Employ- ee worked at center for persons with intellectual disabilities. In course of his duties, employee suffered elbow injury that was recognized as employment inju- ry under Act. Given his disabil- ity, center informed employee that it had no suitable employ- ment for him. Commission de la santé et de la sécurité du tra- vail (CSST) concluded that duty to accommodate did not apply to Act. Employee's appeal was dismissed by Commission des lésions professionnelles (CLP) on basis that statutory benefits in the legislation represent full extent of employer's duty to ac- commodate. On judicial review, reviewing judge set aside CLP's decision and directed that case be reconsidered in accordance with employer's duty to accom- modate under Charter of hu- man rights and freedoms ("Que- bec Charter"). Court of Appeal dismissed CSST's appeal on basis that legislation should be interpreted and applied in ac- cordance with provisions of the Quebec Charter, including em- ployer's duty to accommodate. CSST appealed before Supreme Court of Canada. Appeal dis- missed. Issue was whether CSST and CLP had to take into account employer's duty to reasonably accommodate injured worker in determining if and how return to work is possible under scheme provided for in Act. Purpose of duty to accommodate imposed is to ensure that persons who are otherwise fit to work are not unfairly excluded where work- ing conditions can be adjusted without undue hardship. Scope of duty to accommodate varies according to characteristics of each enterprise, specific needs of each employee, and specific circumstances in which decision is to be made. Court has already noted that all Quebec law should be interpreted in conformity with Quebec Charter. It follows that duty to accommodate ap- plies when interpreting and ap- plying provisions of Quebec's in- jured worker legislation. There- fore, CLP's decision should be set aside and matter should be remitted to Administrative La- bour Tribunal. Quebec (Commission des normes, de l'équité, de la santé et de la sécurité du travail) v. Caron (2018), 2018 CarswellQue 141, 2018 CarswellQue 142, 2018 SCC 3, 2018 CSC 3, McLachlin C.J.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellQue 5584, 2015 QCCA 1048, Bélanger Membre T.A.Q., Schrager J.C.A., and Hil- ton J.C.A. (C.A. Que.). Federal Court of Appeal Tax INCOME TAX Other deductions Legal fees incurred in family litigation concerning custody and support not deductible Minister re-assessed taxpayer disallowing deduction of $6,265 for legal fees incurred in family law litigation concerning cus- tody and support. Taxpayer's appeal to Tax Court was dis- missed on ground expense of this nature not incurred in order to earn income, and so not de- ductible. Taxpayer appealed on ground that legal fees resulted in entitlement to Child and Child- care tax benefits and so were deductible. Appeal dismissed. Tax court did not misapprehend evidence. Agreement taxpayer concluded dealt with other mat- ters including custody and child support. Deduction of expense incurred to establish existence of source of income proscribed un- der s. 18(1)(b) of Income Tax Act. Yovo c. Canada (2018), 2018 CarswellNat 1155, 2018 CAF 59, Marc Noël C.J., Richard Boivin J.A., and Mary J.L. Gleason J.A. (F.C.A.). Federal Court Civil Practice and Procedure JUDGMENTS AND ORDERS Setting aside Statement of claim struck out as essentially devoid of facts Applicant's statement of claim was struck without leave to amend. Applicant brought mo- tion for order setting aside judg- ment, or in alternative, for oppor- tunity to amend his statement of claim. Motion dismissed. Protho- notary made no error of law in her analysis, nor did she commit any palpable and overriding errors in assessing facts. Prothonotary reasonably applied correct test to statement of claim, which was essentially devoid of facts. There was no merit to applicant's alle- gations of bias and lack of juris- diction. There was no basis at all upon which to set aside judgment. Keremelevski v. Ukranian Orthodox Church of St. Mary (2018), 2018 CarswellNat 1515, 2018 CarswellNat 1836, 2018 FC 406, 2018 CF 406, E. Susan El- liott J. (F.C.). Immigration and Citizenship REFUGEE PROTECTION Practice and procedure in refugee claims Member's refusal to recuse himself not per se evidence of bias Refugee Protection Division dismissed family's application three years after hearing. Appli- cants had unsuccessfully applied twice to Member to recuse him- self on grounds that he had low- est rate of acceptance of refugee claims he was biased. Applicants applied for judicial review alleg- ing bias, delay and failure to fol- low Gender Guidelines and Vul- nerable Persons Guidelines. Ap- plication dismissed. Member's refusal to recuse himself not per se evidence of bias. Member not satisfied sufficient grounds for recusal, and this was explained fully in decision. Applicants' real complaint was that they re- garded him as someone, who, because of his previous record, would not be likely to grant their claims. No evidence to support reasonable apprehension of bias on part of Member in way that he handled lead up to hearings or hearings themselves. Many factors contributed to delay but bias not one of them. Question- ing re sexual assault revealed no insensitivity as member sought explanation for discrepancy regarding police involvement following sexual assault and had no intention of going into details. Regarding Vulnerable Persons Guidelines, applicants left out efforts at accommoda- tion by Member. Member's lan- guage did not suggest animosity towards applicants and was not adversarial. Rejection of family therapist's evidence was based on lack of qualification to offer diagnosis. Member not respon- sible for previous illnesses and predispositions nor responsible for length and stress of hearings. Section 7 Charter rights not breached by delay. Insufficient causal connection between vari- ous health and economic im- pacts and delay in decision. I.P.P. v. Canada (Citizen- ship and Immigration) (2018), 2018 CarswellNat 1665, 2018 FC 123, James Russell J. (F.C.). Tax INCOME TAX Administration and enforcement Rules not intended to afford taxpayer full right of discovery Canada Revenue Agency (CRA) issued requirement to taxpayer to answer questions to assist in assessing his income tax un- der s. 231.1 of Income Tax Act. Taxpayer brought application to have requirement set aside on ground that CRA was disen- titled from resorting to s. 231.1 of Act because it was pursuing criminal investigation. Both parties declined to file affida- vits. Taxpayer brought motion under R. 312 of Federal Courts Rules to supplement record by filing copy of record in different court file to show that CRA had begun criminal investigation, and for leave to cross-examine CRA employees who signed af- fidavits in that court file. Motion dismissed. Other court file did not contain relevant evidence so it should not be produced. Other court file dealt with require- ment for third party to provide information, which brought taxpayer's situation to attention of CRA, and contained affida- vits from employees. Taxpayer's claims that employees' affidavits showed that he was under crimi- nal investigation were unsup- ported by evidence. Employees were auditor and manager, and not tasked with criminal inves- 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. CASELAW This is more than a phone book. 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