The Winning Combination Inc. v. Canada (Attorney General), 2019 FC 1014

Application for judicial review dismissed on basis of prematurity. There is a long-standing regulatory relationship between the Applicant and Respondent, as well as a history of judicial review. On previous decisions, the Applicant was awarded costs on a solicitor-client basis as a result of Health Canada’s conduct. That matter was sent back for redetermination. Following these previous decisions, Health Canada advised the Applicant in a letter that the scope of redetermination would be limited to whether the Applicant was a natural health product, namely whether a specific ingredient fell within Schedule 1 of the regulations under the act in question. Health Canada said it would rely on laboratory testing, among other things, to make its decision. The Applicant alleges Health Canada does not have the authority to include laboratory testing in its redetermination; a reasonable apprehension of bias arose out of Health Canada’s conduct in its decision to rely on laboratory testing; Health Canada is acting for an improper purpose (namely, in response to the previous cost decisions); and Health Canada created a legitimate expectation in that it would follow standard procedures established by Health Canada in establishing its redetermination (gathering own evidence in the form of a lab testing goes against this legitimate expectation).

The court asked for more information whether this notice of redetermination is a reviewable decision under the Federal Courts Act and whether the application was premature. Ultimately, the court agreed the application was premature.

In addition, the court also held that the notice of redetermination did not constitute “exceptional circumstances” warranting judicial intervention at an early stage. The court expressed concern over the number of times the Applicant could challenge Health Canada’s decisions regarding Health Canada’s process. This persuaded the court to prevent “piecemeal” court proceedings. The court further stated its reasons were without prejudice to the Application raising same arguments on any future application for judicial review.

Grandjambe Jr. v. Canada (Parks), 2019 FC 1023

Note: The citation spells the Applicant’s name incorrectly. I use the correct spelling in this citation; the citation is cited as Grandjamb v Canada (Parks).

This is an application for judicial review of the decision of the superintendent of Buffalo National Park refusing the Applicant’s application seeking a permit to construct a harvesting cabin within Wood Buffalo National Park. It was brought on behalf of the Applicant, Robert Grandjambe Jr., and members of the Mikisew Cree Nation.

Briefly, the Applicant sought to build a harvesting cabin in Treaty 8 territory. The Superintendent refused the permit to build the cabin. The Applicant, prior to this decision, requested an update sometime on the application and offered to assist in answering questions, providing clarification or consulting with other affected Indigenous groups. The Applicant also stated if he was not to be consulted similar to other affected Indigenous groups, then he would expect that the Superintendent would share the details of those consultation and provide the opportunity to respond. The Superintendent, by way of email, agreed to provide a timeline and responses from affected groups once reviewed. The Applicant sent two follow-up letters.

The court addressed three issues with a standard of reasonableness applying to the decision itself. The issues include:

  • Was the decision to refuse the permit reasonable?
  • Was there a breach of procedural fairness?
  • Is judicial review the appropriate venue to consider whether the decision infringed the Applicant’s treaty rights and if so, whether those rights were infringed?

On the first issue, the court held that the decision was reasonable and not made in a manner inconsistent with the honour of the Crown. The Court also held the Superintendent did not fetter his discretion, did not ignore evidence or failed to provide adequate reasons.

On the second issue, the court held that there is a high degree of procedural fairness given decision involves constitutionally protected Indigenous rights and traditional knowledge. The Applicants had a legitimate expectation that the Superintendent would share details about consultations with other parties, namely First Nations and that the Applicant would have a chance to respond to the information considered by the Superintendent. The court held that the Superintendent’s conduct fell below required minimum standard of procedural fairness that was applicable and promised. The decision-maker stated that he would share the First Nations’ positions and that he would have an opportunity to respond. The Applicant, thus, had a legitimate expectation that a certain procedure would be followed. This procedure was not followed.

On the third issue, the court appropriately held that JR is not the appropriate venue to determine the rights infringement, and that the application granted based on breach of procedural fairness.

Law Society of Ontario v. Fathi, 2019 ONLSTH 112

This decision concerns several notices by the Law Society: marketing and advertising; referrals; responses to the Law Society; and uncivil behaviour. The parties submitted an agreed statement of facts and submissions. The tribunal made a finding of professional misconduct.

Rules 8.02 and 8.03 of the Paralegal Rules of Conduct (generally, the marketing and advertising rules).

The Law Society received information about potentially improper public advertisements and social media marketing on various social media platforms and websites. The advertisements contained the following violations:

  • “advertising himself as a law firm or made up of lawyers, and inviting the public to contact him when they need the services of a lawyer;
  • broadly claiming that he provided legal services in various areas of law, much of which was outside the scope of practice of a paralegal (for example, personal injury law and criminal law);
  • asserting specialization, which is confusing because only lawyers can be certified specialists;
  • failing to identify himself as a paralegal;
  • claiming qualitative superiority over other licensees (“best law firm in Toronto,” “best personal injury lawyers”); and
  • guaranteeing results with phrases such as “MAX SETTLEMENT” and “#maximumbenefits” without providing a caution that past success does not guarantee future success.”

The paralegal has since removed or amended the improper advertising and marketing.

On referrals, the tribunal held that the paralegal did not act with integrity by misleading a fellow licensee. Particularly, the paralegal asserted a client referral and claimed an entitlement to a referral fee.

In the interviews with the Law Society, the paralegal made several untrue statements.

On the uncivil behaviour, the paralegal communicated with insurance company representatives in a manner that uncivil, abusive and offensive or otherwise inconsistent with the proper tone of professional communications by a paralegal. The tribunal also held that by imputing racist motives to the representatives without evidence, the paralegal failed to act with integrity and good faith.

The tribunal suspended the paralegal’s license for 45 days with a cost award for the Applicant.

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