Federal Court of Appeal hears three applications raising parental benefits issues

This week, parties involved in employment insurance and access to information cases made appearances before the Federal Court of Appeal. The Federal Court, on the other hand, dealt with proceedings raising issues of patent law and environmental law.

Federal Court of Appeal

The latest appearance in the case of Dr. Gábor Lukács v. Minister of Public Safety and Emergency Preparedness, A-245-21 was on Thursday. The matter arose when the appellant asked for access to certain records under the Access to Information Act, 1985 (ATIA).

The Canada Border Services Agency (CBSA) refused the appellant’s request under s. 16(1)(c) of the ATIA, which contained an injury-based exemption for lawful investigations and law enforcement.

The appellant applied for de novo judicial review under ss. 41 and 44.1 of the ATIA. The application made the following allegations:

• CBSA primarily directed toward Roma people its interdiction efforts regarding Canada-bound Hungarian nationals at the Budapest Airport
• The interdiction of travellers based on nationality or ethnicity was unlawful discrimination
• Section 16(1)(c) of the ATIA did not shield the CBSA from disclosing records relating to unlawful government actions
• Disclosing the records would not injure any lawful investigation or the enforcement of Canada’s laws

The appellant’s present appeal focused on the issue of admissibility and relevance of evidence in the de novo judicial review. The appellant claimed that the motions judge wrongly denied leave to serve and to file a supplementary affidavit for use in preliminary motions and in the hearing on the merits.

Last Tuesday, the appellate court heard by video conference the cases of Attorney General of Canada v. John Calvin Pettinger, A-74-22; Attorney General of Canada v. Janine Jeffers, A-85-22; and Attorney General of Canada v. Laura Johnson, A-124-22.

The three cases involved judicial review applications relating to decisions of the Social Security Tribunal’s Appeal Division, which confirmed orders made by the General Division. The individual applicants in each case invoked provisions of the Federal Courts Act, 1985; the Department of Employment and Social Development Act, 2005; and the Employment Insurance Act, 1996.

The applicants alleged that the tribunal member determined that an election to receive standard parental benefits could be changed to an election to receive extended parental benefits, even though the legislation provided that the election could not be changed once benefits have been received.

The applicants asked the appellate court to set aside the Appeal Division’s decision and to refer the matter to a different member of that division with the appropriate directions.

Federal Court

The last appearance in the case of Responsible Plastic Use Coalition et al v. The Minister of the Environment, T-824-21 was on Tuesday. The matter arose from the federal government’s addition of plastic manufactured items as a toxic substance under the Canadian Environmental Protection Act, 1999 in its effort to address the problem of plastic pollution.

In May 2021, a coalition of Canadian plastic manufacturers filed a notice of application seeking to challenge the government’s decision. The respondents in the case were the federal attorney general, the federal health minister, and the federal environment and climate change minister.

Last Monday, the court conducted a case management conference for Janssen Inc. v. The Minister of Health and the Attorney General of Canada, T-2627-22.

The case started last December, when the applicant filed a judicial review application challenging the decision of the health minister refusing to list a patent for a medication aiming to treat psoriasis, among other conditions. The matter involved the application of the Patented Medicines (Notice of Compliance) Regulations.