MLB-Slaw Selected Case Summaries

Here you'll find weekly summaries of selected cases provided to Slaw by Maritime Law Book's National Reporter System.

Jul 29

United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp. 2014 SCC 45

Labour Law 

Summary:
On April 29, 2005, Wal-Mart Canada Corp. (Wal-Mart) closed its store in Jonquière, Quebec. The closure, which had been announced the day an arbitrator was appointed to resolve an impasse in negotiations for a first collective agreement with the union certified for that establishment, led to a series of proceedings based on various sections of the Labour Code, C.Q.L.R., c. C-27 (Code), and the Act respecting labour standards, C.Q.L.R., c. N-1.1. An arbitrator concluded that the resiliation of the contracts of employment of all the employees of the Jonquière Wal-Mart constituted a prohibited unilateral change, contrary to s. 59 of the Code. See [2009] R.J.D.T. 1439. Wal-Mart sought judicial review.

The Quebec Superior Court, in a decision reported at [2010] R.J.D.T. 1118; 2010 QCCS 4743, affirmed the decision. Wal-Mart appealed.

The Quebec Court of Appeal, in a decision reported at [2012] R.J.Q. 978; 2012 QCCA 903, allowed the appeal. The union appealed.

The Supreme Court of Canada, Rothstein and Wagner, JJ., dissenting, allowed the appeal and remanded the case to the arbitrator to determine the appropriate remedy in accordance with the disposition of his award. The court awarded costs throughout to the union.

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Indexed As: R. v. Mann (R.S.) 2014 BCCA 231

Civil Rights - Criminal Law - Police

Summary:
The British Columbia Supreme Court, sitting without a jury, convicted Mann of multiple charges relating to a kidnapping: see [2012] B.C.T.C. Uned. 1265. The principal trial issue was whether Mann was the “third kidnapper”. Mann appealed the conviction on three grounds: (a) the trial judge erred in ruling that Mann’s election to be tried by a judge without a jury survived the recommencement of the proceedings within one year of the Attorney General entering a stay of proceedings on a direct indictment (see [2012] B.C.T.C. Uned. 1248); (b) the trial judge erred in finding that searches of two BlackBerry devices seized during the arrests were valid under the common law power of search incident to arrest and did not violate s. 8 of the Charter (see [2012] B.C.T.C. Uned. 1247); and (c) the trial judge misapprehended key aspects of the evidence in concluding that Mann was the third kidnapper.

The British Columbia Court of Appeal dismissed the appeal: (1) Mann was not entitled to be tried by a judge with a jury; (2) the warrantless searches of Mann’s BlackBerrys breached his right under s. 8 of the Charter, but the evidence was not excluded under s. 24(2); and (3) the trial judge did not misapprehend any evidence, or if he did, it was not material to his decision.

Editor’s Note: This was the first case involving a search of a smartphone incident to arrest to be considered by the British Columbia Court of Appeal: see paragraph 80. The British Columbia Civil Liberties Association appeared as an intervenor on the issue.

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Keewatin et al. v. Ontario (Minister of Natural Resources) 2014 SCC 48

Constitutional Law - Indians, Inuit and Métis

Summary:
In 1873 Canada and the Chiefs of the Ojibway Indians entered into Treaty 3 whereby the Ojibway surrendered to Canada a large tract of land, including the Keewatin Lands, situated in what became northwestern Ontario and eastern Manitoba. The Treaty contained a harvesting clause which preserved the right of the Ojibway to hunt and fish on the surrendered land subject to a “taking up” clause. That clause allowed the Government of the Dominion of Canada to take up lands for settlement, mining, lumbering, etc. In 1912 most of the Treaty 3 lands, including the Keewatin Lands, became part of the Province of Ontario. In 1997, Ontario issued a sustainable forest licence which enabled Abitibi-Consolidated Inc., a large pulp and paper manufacturer, to carry out clear-cut forestry operations in certain parts of the Whiskey Jack Forest, which fell within the Keewatin portion of the Treaty 3 territory. In 2005, the Grassy Narrows First Nation, commenced an action, alleging that on a proper meaning of the harvesting clause, any taking up of land by Ontario had to be first authorized by the Dominion of Canada. A case management judge divided the trial into two phases, with the first phase involving two issues:

"Question One: Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to ‘take up’ tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the plaintiffs to hunt or fish as provided for in Treaty 3?

"Question Two: If the answer to question/ issue 1 is ‘no’, does Ontario have the authority pursuant to the division of powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably infringe the rights of the plaintiffs to hunt and fish as provided for in Treaty 3?"

The Ontario Superior Court (Sanderson, J.), in a decision reported [2011] O.T.C. Uned. 4801, answered “no” to both questions, finding in favour of Grassy Narrows on every crucial issue. In particular, the court found that in the Keewatin Lands, Ontario could not take up land so as to limit harvesting rights without first obtaining Canada’s approval (i.e., there was a two-step process). An appeal ensued. Abitibi-Consolidated Inc., the Minister of Natural Resources (Ont.) and the Attorney General of Canada) appealed. Several other groups intervened.

The Ontario Court of Appeal, in a decision reported 304 O.A.C. 250, allowed the appeals. The court held that the answer to question one was “yes” (i.e., Ontario had the right to “take up” lands and thereby limit harvesting rights without first obtaining Canada’s approval respecting the Treaty 3 lands which became part of Ontario in 1912). It was therefore unnecessary to answer question two. The Grassy Narrows First Nation appealed.

The Supreme Court of Canada dismissed the appeal. The court concluded that Ontario had the authority to take up lands in the Keewatin area so as to limit the harvesting rights set out in Treaty 3. By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867, Ontario alone had the ability to take up Treaty 3 land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982. A two-step process involving federal approval for provincial taking up was not contemplated by Treaty 3.

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British Columbia Lottery Corp. v. Canada (Attorney General) 2013 FC 307

Civil Rights - Courts - Criminal Law - Crown - Practice - Statutes

Summary:
The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) alleged that the B.C. Lottery Corporation (BCLC) was non-compliant with the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the Act), as a result of the deficiencies identified in its audit. The Director of FINTRAC affirmed the Notice of Violation and issued a monetary penalty against BCLC. BCLC appealed. The media (CBC) filed requests with BCLC pursuant to the Freedom of Information and Protection of Privacy Act (B.C.), to obtain four documents (the records) relating to FINTRAC’s decision. BCLC refused to disclose any of the records. CBC requested an inquiry be conducted by the Office of the Information and Privacy Commissioner. The Commissioner ordered the records disclosed. BCLC moved to obtain a confidentiality order over the records, under ss. 55(1) and 73.21(4) of the Act, and rule 151 of the Federal Courts Rules.

Prothonotary Milczynski of the Federal Court, in a decision reported at (2012), 424 F.T.R. 30, granted the motion. As the motion did not involve a constitutional challenge, the issue was a matter of the application of the Act. Section 73.21(4) of the Act was “an express non-disclosure provision” that captured information described in s. 55(1). The records contained “prescribed financial transaction information” and thus fell under s. 55(1). The Attorney General of Canada (AG) appealed the Prothonotary’s order that the documents be filed and maintained in accordance with rule 152 of the Rules. The parties and CBC, as intervenor, essentially restated the case they made before the Prothonotary.

The Federal Court dismissed the appeal. “The AG and CBC have not convinced me that Prothonotary Milczynski was clearly wrong in her interpretation of the non-disclosure provisions of the Act or the consequences of that interpretation. In fact, I concur with her findings and conclusions. This is not to say that the AG and CBC have not raised extremely important issues as to whether the Act breaches Charter rights. Before me, however, they argued that the appeal motion simply raised matters of statutory interpretation. In my view, what they are seeking to assert can only be done by a way of constitutional challenge.”

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Jul 15

Rodrigues v. Rodrigues 2013 ABQB 718

Conflict of Laws - Damage Awards - Damages - Injunctions - Libel and Slander - Practice

Summary:
The plaintiff, a parish priest in Calgary, Alberta, sued for damages for defamation. The defendant, a lawyer in Goa, India, was noted in default.

The Alberta Court of Queen’s Bench awarded the plaintiff $75,000 for general damages and $50,000 for aggravated damages, granted injunctive relief and ordered the defendant to pay solicitor and client costs.

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R. v. Omeasoo (J.I.) 2013 ABPC 328

Criminal Law - Evidence - Police

Summary:
Two aboriginal offenders (Omeasoo and Okeynan) were charged with minor offences and released from police custody on condition that they abstain from the consumption of alcohol. Each was an alcoholic. Each failed to comply with that condition and was charged with breaching the undertaking (Criminal Code, s. 145(5.1)). In separate summary conviction proceedings, each pled guilty.

The Alberta Provincial Court sentenced Omeasoo to one day of imprisonment. Okeynan was sentenced to pay a fine of $100. “[W]here an aboriginal offender suffering from alcoholism is to be sentenced for the offence described in s. 145(5.1) C.C. the court will look to the prosecution for assistance in determining that offender’s degree of responsibility for the breach. When that information is unavailable or where no attempt is made to meet the requirements of judicial interim release as described in these reasons, a nominal penalty such as a fine of $1 may be imposed hereafter.”

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R. v. Croft (J.C.) 2013 ABQB 640

Civil Rights - Criminal Law - Statutes

Summary:
The accused were charged with a variety of mainly drug offences. In the police investigation leading to the charges, 12 production orders were issued pursuant to s. 487.012 of the Criminal Code. The orders were addressed to three telephone service providers. Each order required the service provider(s) to produce to a named RCMP officer all incoming and outgoing call details (telephone records) and text messages for cellular phones identified in the order, for a specified period of time. The text messages produced by Telus had been recorded by Telus in the routine operation of the technology. The recording existed prior to the issuance of the production order. Each accused filed and served a Notice of Constitutional Question seeking declarations that s. 487.012 was of no force or effect as being contrary to s. 8 of the Charter. The applications were heard together.

The Alberta Court of Queen’s Bench held that the production orders were invalid. The Court declined to answer the constitutional issue, as the applications could be disposed of by applying the principles of statutory interpretation. “Having concluded that the acquisition of text messages recorded by telephone service providers in their transmission infrastructure in the course of the telephone service provider transmitting the text message from the sender to the receiver, even where the recording was made in the past, is an interception of private communications, and having concluded that, properly interpreted, s. 487.012 does not permit the authorization of interceptions of private communications, I find that the production orders in the case which purported to authorize such interceptions were invalid, and the interceptions of private communications effected pursuant to them, were, in effect, unauthorized.”

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Jun 25

R. v. Spencer (M.D.) 2014 SCC 43; 2014 CSC 43

Civil Rights - Criminal Law - Trade Regulation

Summary:
The accused was charged with possession of child pornography and making available child pornography. The accused brought an application, alleging several violations of his rights under the Charter.

The Saskatchewan Court of Queen’s Bench, in a decision reported at 361 Sask.R. 1, dismissed the application. The accused was found guilty of possession of child pornography and not guilty of making available child pornography. The accused appealed the conviction. The Crown appealed the acquittal.

The Saskatchewan Court of Appeal, in a decision reported at 377 Sask.R. 280; 528 W.A.C. 280, dismissed the accused’s appeal, allowed the Crown’s appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal, affirmed the conviction on the possession count and upheld the Court of Appeal’s order for a new trial on the making available count.

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R. v. Jacobs (P.G.) 2014 ABCA 172

Courts - Civil Rights - Criminal Law - Evidence - Practice

Summary:
The accused was convicted of possession of cocaine for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) and two counts of failing to comply with conditions of release (Criminal Code, s. 145(3)). The accused appealed. At issue was whether the Charter applied to the search which led to the discovery of cocaine in her possession and whether the trial judge erred in the use and admission of expert evidence.

The Alberta Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial. The trial judge correctly concluded that the Charter did not apply. However, the trial judge erred in the admission and use of expert evidence.

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France (Republic) v. Diab 2014 ONCA 374

Extradition - Statutes

Summary:
Diab was wanted in France for his alleged role in a 1980 bombing outside a Paris synagogue. France sought to have Diab extradited.

The Ontario Superior Court (extradition judge), in a decision reported [2011] O.T.C. Uned. 337, committed Diab to await surrender. Thereafter, the Minister of Justice ordered Diab’s surrender to French authorities. Diab appealed from his committal and sought judicial review of the Minister’s decision to surrender.

The Ontario Court of Appeal dismissed the appeal and the application for judicial review.

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