Federal Court of Appeal matters this week involve sick leave, EI, alleged bias
This week, hearings scheduled before the Supreme Court of Canada involved issues relating to the alleged misapprehension of evidence in a criminal law case, self-government in an Aboriginal law case, and the judicial review of administrative law cases.
Supreme Court of Canada
The court set His Majesty the King v. D.F., 40941 on Apr. 22, Monday. The trial judge convicted the respondent of sexual assault, sexual interference, and making sexually explicit material available to the complainant, who was a child.
The Ontario Court of Appeal’s majority dismissed the respondent’s appeal on the count of making sexually explicit material available to a child. It partly allowed the appeal by ordering a new trial for the sexual assault and sexual interference counts.
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The majority found that the judge misapprehended the complainant’s evidence in a key area on a matter of substance. The misapprehension related to material issues at trial and played an essential role in the reasoning process, the majority said. The judge thus failed to deal with inconsistencies between the complainant’s and her mother’s evidence, the majority added.
The court scheduled Attorney General of Québec v. Pekuakamiulnuatsh Takuhikan, 40619 on Apr. 23–24, Tuesday to Wednesday. The respondent was a band council representing the Pekuakamiulnuatsh Innu First Nation, whose community was located in Mashteuiatsh.
The respondent brought an action against the Canadian and Quebec governments. It alleged that they breached their obligations to negotiate in good faith, to act with honour, and to fulfill their fiduciary duties relating to the funding of its police force.
The court set TransAlta Generation Partnership, et al. v. His Majesty the King in Right of the Province of Alberta, et al., 40570 on Apr. 25, Thursday. The appellants applied for judicial review and challenged as ultra vires certain provisions of the 2017 Alberta Linear Property Assessment Minister’s Guidelines.
These provisions prevented off-coal agreements from being considered when assessing depreciation. The judge rejected the judicial review application and found that the guidelines, including the challenged provisions, were within the minister’s authority and were lawfully enacted. The Alberta Court of Appeal dismissed the appeal.
The court scheduled Roland Nikolaus Auer v. Aysel Igorevna Auer, et al., 40582 on Apr. 25, Thursday. The parties married in 2004, had one child, and divorced in 2008. The appellant father paid the respondent mother spousal and child support. He filed an application challenging the Federal Child Support Guidelines, SOR/97-175
He argued that the guidelines were unauthorized under s. 26.1(2) of the Divorce Act, 1985. The application judge disagreed that the guidelines were ultra vires the Divorce Act. The governor-in-council’s decision to promulgate the guidelines was reasonable, the judge said. The Alberta appeal court dismissed the appeal.
Federal Court of Appeal
The court set the cases of Ministre du Patrimoine Canadien c. 9616934 Canada Inc. et al.; A-122-23; Ministre du Patrimoine Canadien c. 9501894 Canada Inc. et al., A-123-23; and Ministre du Patrimoine Canadien c. 9849262 Canada Inc. et al., A-124-23 on Apr. 23, Tuesday.
These cases arose from the refusal to grant certificates of Canadian cinematographic or video production to the respondents based on findings that the production failed to meet criteria established by income tax regulations.
The court scheduled Attorney General of Canada v. Véronique St-Onge, A-168-23 on Apr. 24, Wednesday. This judicial review application questioned a decision by the Federal Public Sector Labour Relations and Employment Board’s panel, which allowed a grievance challenging the recovery of an overpayment of sick leave.
The court set Roger Klouvi c. Procureur Général du Canada, A-281-23 on Apr. 24, Wednesday. This request for judicial review questioned the Federal Public Sector Labour Relations and Employment Board’s decision. The grievance arbitrator allegedly failed to apply the correct criteria to assess claims of bias in the conduct of the investigation leading to the employee’s dismissal.
The court scheduled Carmine Palozzi v. Attorney General of Canada, A-232-23 on Apr. 25, Thursday. This judicial review application sought a writ of certiorari quashing the Social Security Tribunal appeal division’s denial of employment insurance benefits.
The court set Procureur Général du Canada c. Roger Monette, A-285-22 on Apr. 25, Thursday. This judicial review application challenged the Canada Industrial Relations Board’s decision. This case arose from a former employee’s complaint under the Canada Labor Code, 1985 against a company that declared bankruptcy.