. Ontario Public Services Union v. Ontario (Community Safety and Correctional Services), 2015 CanLII 36169 (ON GSB)

Wild was a corrections officer whose employment was terminated for using excessive force when dealing with an inmate. He was acquitted of criminal charges relating to the incident. The union applied for an order that the Grievance Settlement Board automatically allow the employee's grievances, on the basis that it must accept the decision of the criminal court.

Did the Board automatically allow the grievances? Is an acquittal in a criminal trial admissible in a subsequent civil trial as proof that the party did not commit the offence? Why or why not?

3. Muzik v. RBC Life Insurance Company, 2013 MBQB 309 (CanLII)

Muzik bought a disability insurance policy. He moved and opened a new bank account. He did not notify the insurer of his change of address or arrange for automatic payments from his new account. He did not ask the post office to forward his mail to his new address. When a monthly payment was not made, the insurer sent letters to Muzik, at his old address, advising him that his policy had lapsed. The letters were returned to the insurer. Muzik became disabled and tried to make a claim under his policy. When the insurer refused his claim, Muzik sued, asking for reinstatement of the policy and judgment for the benefits denied by the insurer. He claimed he was unaware his policy was about to lapse because he was disabled by illness. He later asked for permission to amend his claim relating to an issue raised by the insurer. The insurer claimed that the amendment raised a new cause of action and that the relevant limitation period had expired.

The Court ruled that the proposed amendment did not raise a new cause of action but instead elaborated on the cause of action set out in the original pleading. The limitation period was therefore irrelevant. The Court went on to say that even if the proposed amendments created a new cause of action, there were special circumstances that justified allowing the amendments, despite the violation of the limitation period. The special circumstances were that Muzik was disabled during the relevant time and that it would be unfair to prevent him from amending his claim. The Court held that the special circumstances doctrine remains in effect in Manitoba, so it had discretion to refuse to enforce the limitation period.

Is it appropriate for limitations legislation to eliminate the discretion of the courts to extend the limitations periods set by legislation, as held by the court in the Paramount case in Case Summary 3.2? Is there any way that the two conflicting decisions will ever be reconciled, so that there will be a consistent approach throughout Canada?

4. Angelo's Gold Factory Inc. v. Anthony Pipolo Incorporated, 2007 CanLII 80119 (ON SC)

The plaintiff had been unsuccessful in its attempts to serve the defendants by personal service. The plaintiff's lawyer then served the statement of claim on a lawyer who was representing the defendants in other matters. The lawyer had not obtained his clients' authorization to accept service of the statement of claim. None of the defendants responded to the statement of claim, so the plaintiff obtained default judgment against them.

In this action, the defendants applied to have the default judgment set aside. Explain the nature of their complaint and the likely outcome. In your answer consider the role of fairness in the administration of justice and whether practical requirements should be permitted to overrule this requirement of procedural fairness within court processes or when dealing with government tribunals.

5. Trindent Consulting International Inc. v. Logsdon, 2018 ONSC 1696 (CanLII)

Trindent was incorporated in Wyoming, with its head office in Toronto. It had no physical operations in Wyoming. An Ontario corporation oversaw the management, human resources, and administrative functions of Trindent from its Toronto offices. Logsdon was a US citizen resident in Texas. Trindent made an offer of employment to Logsdon as a manager in its Toronto office. The salary was in US dollars. The governing law of the contract was the law of Ontario. There was no forum selection clause. Logsdon accepted the offer. He did not provide services to any clients located in Canada. His initial interview was in Toronto, where he also attended for training sessions and meetings with management. Logsdon resigned and sued Trindent in Texas for breach of the employment contract. Trindent filed a defence to that action and then commenced this action in Ontario, suing Logsdon for breach of the employment contract. Logsdon applied to stay the action, claiming Ontario was not a convenient forum.

Did the Court stay the action? What factors did it consider in making its decision?

6. Community Panel of the Adams Lake Indian Band v. Adams Lake Band, 2011 FCA 37 (CanLII)

Dennis ran for election to the band council but was unsuccessful. He appealed the election result, alleging irregularities and improprieties. The election rules required the community panel (which handles any appeals) to have five persons "to govern and decide all proceedings . . . " On the last day of deliberations of the panel, after deliberations had been completed and halfway through the voting process, one of the five members of the panel resigned. His reasons for resigning related to the merits of the appeal; it was clear that he had made a decision on the appeal and that he knew he was going to be outvoted by the other four members of the panel. The remaining members completed the voting process and dismissed the appeal. The Federal Court held that the panel did not have jurisdiction to rule on the appeal because it did not have a five-person quorum. The decision of the panel was quashed. The panel appealed.

What was the decision of the Federal Court of Appeal? Should a member of an administrative tribunal be allowed to frustrate the work of the tribunal by resigning at an inopportune time?

7. Black v. Canada (Advisory Council for the Order), 2013 FCA 267 (CanLII)

Black was convicted of fraud and obstruction of justice in the United States. The advisory council for the Order of Canada proposed to review his appointment to the Order. Black requested an in-person oral hearing to enable him to demonstrate that the American prosecutors had not acted appropriately in handling his case and that he would not have been convicted of the crimes in Canada. The council refused his request and indicated that he could make written representations in support of his position that his appointment to the Order of Canada should not be terminated because of his conviction. Black applied for judicial review on the ground that the duty of fairness required that he be given an opportunity for an oral hearing. The Federal Court dismissed his application.

Did the Federal Court of Appeal uphold Black's appeal? Do the factors set out in Baker v. Canada (see Case Summary 3.5) indicate a duty of fairness so high that it required the council to give Black an oral hearing?

8. Brhane v. Canada (Citizenship and Immigration), 2018 FC 220 (CanLII)

Ms. Zeru entered Canada on a visitor's visa and then filed for refugee protection, as she feared persecution because two of her children had evaded military service in Eritrea. She claimed Brhane as an overseas dependent child on her application. She provided his birth certificate and photographs of her and Brhane. Brhane was interviewed in Sudan. A Canadian visa officer in Rome rejected Brhane's sponsored application for a permanent residence visa. The officer claimed that Brhane "looked substantially older than a 20 year old" and that the birth certificate was not verifiable. He was not convinced that Zeru was Brhane's mother and found that he did not bear any resemblance to the boy in the photographs.

Brhane applied for judicial review, claiming that he was denied procedural fairness by not being given an opportunity to undergo DNA testing, after the officer advised him that testing would take place, and by not being provided with an opportunity to answer the officer's concerns about his age and his relationship with Zeru. The relevant government guidelines state that visa applicants have the option to undergo DNA testing when they cannot provide satisfactory documentary evidence.

The Court allowed Brhane's application, because of the "doctrine of legitimate expectations." What does this doctrine state? The Court also ruled that the officer breached the duty of procedural fairness by not informing Brhane of his concerns about his age and his relationship with Zeru before the interview. Does this mean that visa officers must always advise visa applicants of their concerns prior to an interview, or is there another way to satisfy this aspect of procedural fairness?

9. GNWT v. Beaulieu, 2014 NWTSC 63 (CanLII)

Beaulieu applied on a competition for a position with the Government of the Northwest Territories (GNWT). His application was screened out by the selection committee on the basis that he did not meet the screening criteria. Another applicant was selected. Beaulieu appealed the decision to screen him out of the competition. After a hearing, a staffing review officer (SRO) granted Beaulieu's appeal and directed that the competition be rerun. She ruled that the selection committee used two separate combinations of education and experience to evaluate Beaulieu's rsum when only one combination should have been used. The GNWT applied for judicial review of the decision. It claimed that the SRO erred in interpreting the GNWT's human resource manual.

The screening criteria included completion of the third level of a recognized accounting program or equivalent postsecondary education, and three years of varied accounting/budgeting and contracting administration experience. Beaulieu had a business administration diploma and three years of varied accounting experience. As this was not three years' experience in a budgeting and contracting environment, the selection committee concluded that he did not satisfy the requirements of the screening criteria.

Was the SRO correct in screening Beaulieu in on the basis of his diploma and his varied accounting experience? Would her approach be appropriate in competitions for which there are several screening criteria? Why did the Court consider whether her error was "reasonable"?