#COVID19 Legislation & Case Law

COVID-19 or Coronavirus legislation and case law by numbers… with images (from March 20, 2020 until May 17, 2020). You can ask me for the data with links to the case law and I will happily send it to you in CSV format. You can filter and view it here.

LEGISLATION
Legislation by Jurisdiction
CaseLawVLegislation
Case Law v Legislation
CaseLawAreaOfLaw
Case Law by Area of Law

 

#COVID19: Case law and legislation in Canada

Awesome Table allows access to their platform for COVID-19 related needs at no cost. I have compiled the case law and will add legislation as it becomes available (and when I can add it). You can view it directly here as opposed at the IndigiBot.ca link (aka here). This is a lot more “nicer” and manageable than the previous post (here).

 

#COVID19 or #Coronavirus case law in Canada

Hi all!

I have set up #IndigiBot to monitor case law that sites “COVID-19” or “coronavirus” in Canada. It is tweeting over here: @IndigiBot. I am trying my best to share the results in another format other than on twitter. At the moment, this is the only “free” way to share this information and in the most timely (read: fast with minimal work) way. As you know, I am a one-woman show! This requires some steps and apologies on not being able to remove the small amount of coding in “Jurisdiction and Key Terms” column. I am thinking about a better way to fix that but for now, here are the results in excel format. You can also refresh (little icon with “arrows in circles”).

Ps. I will update the information when I can.

#IndigiBot update

I originally had #IndigiBot tweeting out #adminlaw case law and case law that cited #Vavilov. Those tweets are put on pause to allow #IndigiBot to tweet out case law that mentions “covid-19” or “coronavirus”. You can follow along here: http://www.twitter.com/indigibot. I am trying to see whether there is a way to allow #IndigiBot to tweet out legislative/regulatory updates, or other updates relating to covid-19 or coronavirus. Stay tuned!

Prisoners’ right to do legal research, the #GreenhouseGas case in #Alberta (#ABpoli) and Professional Misconduct in Re-Litigating Cases

Law Society of Ontario v Mazinani, 2020 ONLSTH 24

The LSO brought a CUPE motion to admit several orders into proceedings against the respondent lawyer. The LSO alleged that the respondent lawyer failed to comply with an order of Deputy Judge Shapiro and as such, the respondent lawyer failed to act with integrity and failed to encourage public confidence in and respect for the administration of justice. The panel held that the LSO must prove those elements of the alleged misconduct in the main conduct hearing. The panel held that the orders are admissible as evidence in the conduct proceeding and also held that the respondent lawyer is not precluded from re-litigating certain issues, but precluded from re-litigating other issues, namely the order of Shapiro, DJ.

Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 75

This is a reference decision reviewing the constitutionality of certain parts of the Act, namely Parts 1 and 2. The court held that these parts are unconstitutional in their entirety. Several parties intervened including Ontario, New Brunswick, Saskatchewan Power Corporation and SaskEnergy Incorporated. They supported Alberta’s position. Alberta’s position was that the Act was wholly unconstitutionally and does not fall within the national concern branch of the federal government’s peace, order and good government power. The interveners all viewed the matter of the Act or its pith and substance is the regulation of greenhouse gas emissions and to allow the federal government to regulate same would interfere with the provinces’ jurisdictions to regulate their own natural resources. Saskatchewan maintained its position in the SK reference, primarily that the Act involves a tax that Canada improperly delegated to the executive branch of government (contravening section 53). Canada maintained its position that the Act fell under its national concern doctrine by regulating GHG emissions to establish minimum national standards integral to reduction of same. Climate Justice, Athabasca Chipewyan First Nation, the Assembly of First Nations and the Canada Public Health Association supported Canada’s position. The Indigenous groups stressed the need to read the Act in light of section 35 of Constitution Act, 1982. There were other positions raised. Among other things, the court held:

For a “matter” to qualify as a matter of national concern, it must have a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution: Crown Zellerbach at 432. If not, the national concern doctrine cannot be successfully invoked. When the federal government claims, as here, a broad head of power, this will often be the most significant issue.

The court ultimately agreed that the Act substantially overruled the provinces’ powers under several heads of powers and their proprietary rights as owners of their national resources.

Watts v. Canada (Attorney General), 2020 FC 209

Mr. Watts is a federal offender subject to a Long-Term Supervision Order. Mr. Watts filed an application for judicial review to be heard in April 2020. Mr. Watts is subject to several conditions and has been returned to custody on several occasions for breaches or alleged breaches of the special conditions. Mr. Watts represented himself in this matter and will do so at the hearing since he is unable to obtain legal aid for such purposes. Mr. Watts seeks various forms of relief including:

  • An Order that CSC not transfer the Applicant prior to his April hearing and either transport him to Halifax or allow him sufficient time to travel there on his own.
  • An Order that CSC not read the Applicant’s legal files, mail, research or writings kept under his lock and key other than to search for contraband.
  • That CSC be ordered to provide the Applicant with access to a laptop or let him purchase an older computer without the capability of accessing the Internet.
  • That CSC not return him to Parrtown but to a CRF in Halifax, Moncton or St. John.
  • That PBC and CSC not provide his information to the police or release it to the media.
  • That CSC not require him to wear an Electronic Monitoring Device (EMD or ankle bracelet).
  • That he be allowed to obtain employment with no restriction other than to call in his location at lunch time each day.

Case law cited by the court stated that Mr. Watts must demonstrate a prima facie case and the court held that “it is not clear that Mr. Watts has a strong prima facie case which would justify the issuance of a mandatory interlocutory injunction that he not be involuntarily transferred again” (para 9). Mr. Watts was previously transferred, and the AG alleges this was “coincidental” (para 9) and it was due to the refusal of the residential facilities as a result of Mr. Watts’ misbehaviour. The court held that some of the complaints can be addressed through administrative means (i.e. information provided to police or to the media). The court held that the police and correctional authorities should be able to supervise Mr. Watts without denying him employment opportunities while under the supervision order. Other requests remain open to Mr. Watts. The court ordered Mr. Watts’ to allow, with limits, adequate access to a computer and to Internet based legal research websites such as CanLII or the Federal Court website in preparation for the April hearing.

From band councils versus hereditary chiefs to #Vavilov analysis to disqualification of counsel

Da’naxda’xw First Nation v Peters, 2019 FC 1568

This is a case involving an elected band council and hereditary chiefs. It is a motion for interlocutory relief. Either party claims that one does not have authority to govern while claiming that they do have the authority to govern. Prior to this motion, the band council expressed a desire for an electoral council, filing for judicial review. At this motion, the hereditary chiefs request the original application to be dismissed and the band council request that the hereditary chiefs stop acting as band council, generally speaking. The judge dismissed either motion because failed to show clear and non-speculative irreparable harm. Both parties relied on harm that extended to their ability to govern the community but either harm failed to prove beyond speculation.

Zang v Canada (Citizenship and Immigration), 2020 FC 112

This case is an appealing a decision of an immigration officer using Vavilov analysis. The Vavilov analysis presumes a reasonableness standard unless there is a clear legislative intent to prescribe a different standard of review, and certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The applicant sought a two-year work permit at a small company in Alberta as a CFO. The officer held that the applicant did not meet the legislative requirements under immigration law and declined the permit. The applicant argued that:

“(1) the Officer breached her right to procedural fairness by making credibility findings without offering the Applicant an opportunity to respond; and (2) erred in unreasonably failing to acknowledge important evidence concerning the Applicant’s work experience, English language skills, and her prospective employer’s support.”

The court held that the decision was on the insufficiency of the evidence to show that the applicant could meet the requirements of a CFO position in an Alberta company in small town construction. The court further held that the officer’s findings and conclusions are reasonable in light of the evidence or lack thereof in support of the original application.

Arcand v Alexander First Nation and Kurt Burnstick, 2019 CHRT 47

The First Nation filed a motion to have counsel who is representing the individual disqualified based on a conflict of interest in a case where a complainant is making sexual harassment allegations against the individual. The complainant filed a human rights complaint against the First Nation since the individual was employed by the First Nation (failing to provide a harassment-free workplace and on the basis of adverse differential treatment based on prohibited grounds). The parties agree that the counsel was initially retained by the First Nation and the individual to respond to complaints against them and drafted their initial responses. Counsel terminated all retainers with the First Nation but continued to act for the individual. The First Nation alleges that the counsel previously represented them in the matter and received confidential information, and as such, since the Respondents are in adverse interest, there is a conflict of interest (from representing the individual). The complainant agrees with the First Nation. The court relied on the long standing principle that administrative bodies are the “masters of their own procedures” to prevent abuse of its own processes. All parties accepted the jurisdiction of the tribunal. The test for disqualifying a lawyer is a two-part test:

  1. Did the lawyer receive confidential information attributable to a solicitor-client relationship with the opposite party; and 
  2. Is there a risk that such information will be used to the prejudice of the other party?

The tribunal agreed that the counsel may have received information from the First Nation that was essential to the evidence and legal strategy to be relied upon in its defence of the complaint. The tribunal inferred and held that the counsel did receive confidential information from the counsel and that a reasonable member of the public would conclude that there is a risk the information would prejudice the First Nation.

Unprofessional conduct at Ontario College of Teachers, First Nations’ Authority under Indian Act & Exploitation under Specific Claims Tribunal Act

Ontario College of Teachers v Allen, 2019 ONOCT 82

A decision heard before the discipline committee at the Ontario College of Teachers that held Allen guilty of unprofessional conduct, as opposed to disgraceful or dishonourable conduct. The parties submitted an agreed statement of facts and a guilty plea to the allegations of professional misconduct. The teacher was alleged to have hit a student, leaving a bruise and causing embarrassment, and abused a student psychologically or emotionally. The incident was reported to the police and the police did not lay charges, instead instructing the teacher that further incidents would lead to criminal charges. The committee considered mitigating and aggravating factors, suspending the member for one-month and anger-management courses.

Pelletier v. Delorme, 2019 FC 1487 

This is an application for judicial review of two decisions made by a First Nation to adopt a new land management regime, and its monetary compensation amount for individuals affected by the changes. The land management regime introduced agriculture permits on reserve lands pursuant to subsection 28(2) of the Indian Act. Historically, and briefly speaking, the land was managed through a traditional land management system or through wills. These practices generally created disputes within the community and among families, including overlapping claims by some First Nations members. The First Nation introduced the land management regime with a “desire to create a system of land management that respected the collective interests of the [First Nations’] membership” (para 118). The band council resolutions, relied on by the applicants, granting the land have long since expired. The issues are as follows:

  1. Whether the application is time barred;
  2. Whether the respondents have jurisdiction to make the two decisions;
  3. Whether the applicants’ rights to procedural fairness were breached; and
  4. Whether the decisions were reasonable.

The decision held that the application was time barred but engaged in an analysis on the remaining decisions and held that the First Nation did have the jurisdiction to make the two decisions and that the applicants’ right to procedure fairness was not breached. On these two issues, the applicants did not provide any legal authority for the argument that the First Nation did not have the authority to make the two decisions; rather, their argument referred to procedural fairness. Further, the decision held that the land was set aside for the collective benefit for all First Nation’s members and that the two decisions were consistent with the band council’s responsibility under the Indian Act, including the band council’s fiduciary duty toward the membership and the discretion to grant or deny allotments. There was no responsibility toward a particular process; the band council could proceed as they see fit. The band proceeded through various notices and that any entitlement to procedural fairness was at the low end of the spectrum. In the end, the new land regime process was well-known to the applicants as a result of the details provided in their affidavits, and despite the errors in the process, any errors were resolved by the First Nation in a timely manner. The decisions made by the First Nations were reasonable, including protecting the interests of the applicants while balancing the interests of the community, among other things. Application dismissed.  

Makwa Sahgaiehcan First Nation, 2019 SCTC 5 

This is a complex decision for various claims filed under section 14(1) of the Specific Claims Tribunal Act or the “Grounds of a specific claim” provisions (see below). The hearing of the claim was divided into two separate stages, validity and compensation. This decision is the validity of the claim. There were various surrenders, takings, expansions or dispositions of reserve lands over a course of several years from 1932 to 1957, totalling 5 different claims. Three out of five claims were declared valid under the Act for the following:

  • Crown breaching its fiduciary duties of loyalty, consultation and adequate consideration of the interest of the Band which ultimately tainted the dealing causing the transaction to be exploitative;
  • Crown failing to protect the Band from alienation of the land resulting in a breach of duty to preserve and protect the Band’s interests from exploitation;
  • Crown’s post-surrender breached its fiduciary duty by offering lots for sale at less than market value to settlers, despite the original taking of the surrender serving the interests of the Department of Indian of Indian Affairs (thus, original surrender not exploitative or improvident, but the post-surrender breach of duty is such).

The two claims that were declared invalid include an expansion wherein male members of the Band obstructed female members from exercising their vote under the Indian Act, and a disposition wherein there was no evidence of a statutory breach or breach of fiduciary duty.

The various claims were a result of settlers coming into the region and taking up land through squatting or trespassing. The Department of Indian Affairs facilitated the various transactions claimed under the Act under its various statutory or administrative powers at the time.

The alarming finding is the fact that the tribunal did not hold that male members preventing female members from voting as non-exploitative. The Indian Act has a long history of denying the rights of Indigenous women or preventing Indigenous women from accessing their rights. This is but one example. I invite others to review the decision to see the type of conduct that amounts to a breach versus acts that do not amount to an act.

Grounds of a specific claim

  • 14 (1) Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from those grounds:
    • (a) a failure to fulfil a legal obligation of the Crown to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown;
    • (b) a breach of a legal obligation of the Crown under the Indian Act or any other legislation — pertaining to Indians or lands reserved for Indians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada;
    • (c) a breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation;
    • (d) an illegal lease or disposition by the Crown of reserve lands;
    • (e) a failure to provide adequate compensation for reserve lands taken or damaged by the Crown or any of its agencies under legal authority; or
    • (f) fraud by employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands.

Early Childhood Educators, Band Council Resolutions and Canadian International Trade

College of Early Childhood Educators vs Christine Villani, 2019 ONCECE 14 (CanLII)

The Discipline Committee of the College of Early Childhood Educators found a member committed an act of professional misconduct and was ordered to pay all or part of the College’s costs. The Committee also ordered the member’s certificate suspended for five months, among other terms. The member left a child unsupervised and/or allowed the child to walk through the playground, through a school bus lane or across a busy residential street. The child was returned to the location once found crying by a community member. When confronted by the child for being unsupervised, the member did not take responsibility and/or acknowledge any wrongdoing. The member then made inappropriate comments to the parent of the unsupervised child and/or used an inappropriate tone with the parent of the unsupervised child and/or said words to the effect of, “can we just bury this already”. The member and college made a joint submission on penalty and costs which were accepted by the Committee.

The Key First Nation v Lavallee, 2019 FC 1467 (CanLII)

This is an application for judicial review to quash band council resolutions passed by a former band council. The new band council seeks to have them quashed because of alleged improprieties. The timeline to file the application for JR was not followed and thus, the band council requested an extension to file the application. Neither request was granted. Concurrently, a separate but related statement of claim was filed against the law firm who represented the band council in an election application, seeking (essentially) a reimbursement of the legal fees. An abuse of process as against the band council ordered was not granted.

LIQUID DIELECTRIC TRANSFORMERS, 2018 CanLII 146782 (CA CITT)

A decision made by the Canadian International Trade Tribunal concerning a previous order that concerned the dumping of certain transformers originating in or exported from Korea. Under the tribunal’s governing legislation, findings of injury or threat of injury and associated protection in form of anti-dumping or countervailing duties expire five years from the date of finding or, if one or more orders continuing the finding have been made, unless the tribunal initiates an expiry review before the expiry date. The original order was set to expire on November 20, 2017. The tribunal issued a notice of expiry review on July 25, 2017 and on December 22, 2017, the Canada Border Services Agency determined there was likelihood of resumed or continued dumping. The tribunal ordered four domestic producers, 19 importers and two foreign producers to complete questionnaires. The tribunal received some completed questionnaires. A hearing was held and the tribunal heard from select parties. After reviewing all of the evidence, the Tribunal held that revocation of the original finding is likely to “provide suppliers of subject goods with greater flexibility to continue the aggressive behaviour observed in interim 2017, including significant price-undercutting, in order to regain market share and gain market share in the “premium” market segment.” The tribunal held that this would likely result in “significant adverse price effects on the domestic industry.” The original order was continued.

LSO and non-compliance orders, youth and mental health holds, and discretion under FOI requests

Law Society of Ontario v Odeleye, 2019 ONLSTH 315

Decision involves the LSO Tribunal exercising its discretion under the SPPA to ask the division court to inquire into whether the Immigration and Refugee Board is in contempt of its orders for production of records. The case originally involves a series of complaints against the licensee-lawyer for unwelcome sexual advances and related conduct (source). The lawyers for the licensee requested production for documents from the IRB and the IRB produced several documents (about 90 pages) with some redactions. The LSO ordered the production of same with no redactions. The IRB did not comply as argued the LSO did not have jurisdiction. The Tribunal disagreed and ordered again. The Tribunal takes the position that it can put protections in place to address the privacy concerns.

Strathroy-Caradoc (Police Service) (Re), 2019 CanLII 99482 (ON IPC)

Decision involves access to records involving the death of a minor child. The appellants are the parents’ of the minor child. The parents made five access requests to the police service. The police denied access relying on statutory provisions that the matter is still being investigated and/or part of a law enforcement investigation. The adjudicator finds that all the records are exempt but that the police’s exercise of discretion is not upheld and re-ordered to re-exercise discretion. The decision held that the exercise of discretion was not in accordance with Municipal Freedom of Information and Protection of Privacy Act, and ordered the police to re-exercise the discretion. Further, the adjudicator was not persuaded that the police independently exercised their discretion in not disclosing the records and hence, the order.

BS v Youthdale Treatment Centres (CYFSA s. 171), 2019 CFSRB 51

The child (BS) made an application to the Child and Family Services Review CFSRB (“CFSRB”) to review her emergency admission to the Acute Support Unit at a local treatment centre. The child took the position that the statutory criteria under the Child, Youth and Family Services Act was not met. The supervisor of the residence testified that the child had a history of self-harm and running away from the residence. The supervisor also said that a note was found and this note was taken as a suicide note. No medical treatment required for self-harm to her wrists; medical treatment provided to cuts on her legs but the child was released from the hospital. The CFSRB held that the evidence provided did not meet the statutory requirement for the admission. Namely, the CFSRB held,  

At para 21: The description presented by the Supervisor and the admitting psychiatrist did not demonstrate that the Child had a substantial disorder of thought, emotion or cognition which grossly impaired her capacity to make reasoned judgments at the time of her admission to the Unit as required under the Act.

LSO, Employment Insurance Commission and MPAC

Law Society of Ontario v. Bogue, 2019 ONLSTA 19

This is an appeal from an interlocutory suspension and five related interlocutory orders. The LSO suspended the lawyer’s license after the LSO held, “That there is evidence … to suggest that Mr. Bogue is using litigation techniques that could harm the administration of justice and cause cost and delay to his clients and others.” (Source.) Mr. Bogue requested relief from the transcript requirements and several orders requesting the LSO pay for certain transcripts from other related hearings and an order that someone other than the chair select the appeal panel, among other things. Mr. Bogue made other arguments relating to jurisdiction and in sum, argued that the LSO has no jurisdiction to “regulate his conduct as an Indigenous lawyer.” The tribunal who determined Mr. Bogue’s interlocutory suspension held that the evidence “raised very serious concerns that he lacks competence and/or the capacity to practice law.” Relying on these holdings, Mr. Bogue requested that the LSO pay for the transcripts, which was denied. Motion dismissed.

L. N. v Canada Employment Insurance Commission, 2018 SST 1066

This is an appeal from the Employment Insurance Commission. The appellant stopped working for medical reasons in July 2017. The appellant claimed she was covered by a sickness indemnity plan with her employer. The appellant received $350 under her collective agreement for the first seven days to compensate for the EI’s benefit program one-week waiting period under this plan. The Commission determined that the amount paid to the appellant was earnings as defined in the Employment Insurance Act. The appellant argues the $350 constituted an advance from the employer which she repaid and that it must be considered a loan. The appellant repaid the employer because the employer paid the appellant directly as opposed to the insurer. If the employer sent money to the insurer, the appellant would effectively receive double-payment and hence, the appellant repaid the employer. The advance the employer paid was replaced by the insurer’s coverage, which constituted earnings. The tribunal held that employment insurance regulations clearly state that group wage-loss indemnity plans are earnings and confirmed short-term benefits under group insurance are considered income. The commission allocated the earnings correctly.

Morellato v Municipal Property Assessment Corporation, Region No. 32, 2019 CanLII 89274 (ON ARB)

Appellants seek to obtain costs in respect of the original decision, an appeal from an annual assessment in land owned by the appellants. The appellants argue that MPAC engaged in frivolous, vexatious and unreasonable conduct, and also acted in bad faith in its dealings with the appellants. MPAC disagrees and says all actions were carried out in good faith. The appellant grounds include disagreement with characterization of their land as residential and the length of the appeal. The original decision held that such was a result of the appellant’s behaviour and was a difference of opinion. The original decision held that a difference of opinion “is not the same as unacceptable behaviours as set out in the Board’s Rules and the SPPA” (which states that costs are awarded in conduct that are alleged “to be unreasonable, frivolous, vexatious or in bad faith”). The tribunal agreed and the motion was denied, with no costs.