36539     Director of Criminal and Penal Prosecutions v. Robert Jodoin

(Que.)

Criminal law – Costs

The respondent is a lawyer who, in this case, was representing clients charged with having had the care or control of a motor vehicle while impaired by alcohol or while their blood alcohol levels exceeded the legal limit. On May 7, 2013, after a hearing in the Court of Québec on a motion for the disclosure of evidence, the respondent filed in the Superior Court, on behalf of his clients, motions for writs of prohibition challenging the jurisdiction of the Court of Québec judge. The applicant, the Director of Criminal and Penal Prosecutions, objected to these motions. The Quebec Superior Court dismissed the motions for writs of prohibition. The Quebec Court of Appeal allowed the appeal solely to set aside the award of costs against the respondent.

36771   Dion Henry Alex v. Her Majesty the Queen

(B.C.)

Charter of Rights and Freedoms – Search and Seizure – Criminal law

The applicant was convicted for the offence of having care or control of his vehicle with a blood alcohol level in excess of the legal limit, contrary to s. 253(b) of the Criminal Code (the “over 80” count). He was also convicted of driving while prohibited, but has not appealed that conviction. There was some uncertainty whether the trial judge found objective and subjective grounds for the officer’s suspicion under s. 254(2) of the Criminal Code. The summary appeal judge was unable to determine whether there had been a reasonable suspicion and did not reach a firm conclusion on whether the officer subjectively believed there were grounds to suspect impaired driving. Both the trial judge and summary appeal judge concluded, however, that R. v. Rilling, [1976] 2 SCR 183 applied to make the breathalyzer certificate admissible in the absence of a challenge under s. 8 of the Charter. The Court of Appeal dismissed the appeal on the basis that theRilling decision remains good law in Canada.

36605    Commission des normes, de l’équité, de la santé et de la sécurité au travail (formerly known as the Commission de la santé et de la sécurité du travail) v. Alain Caron

- and -

     Commission des lésions professionnelles, Centre Miriam

(Que.)

Employment law – Industrial accidents – Duty to accommodate

On October 20, 2004, the respondent, Alain Caron, developed a case of epicondylitis in the course of his work as an instructor at the Centre Miriam (the “employer”). He was therefore given a temporary reassignment which the employer terminated three years later. The respondent has not returned to work at the Centre Miriam since then. A year after the respondent suffered his employment injury, the Commission de la santé et de la sécurité du travail (the CSST) declared that this injury had consolidated with permanent impairment and functional disabilities, and the CSST then began a rehabilitation process to assess whether the respondent could continue working for his employer. It eventually declared that the respondent was fit to return to the position he had held before his injury, but the employer successfully challenged that decision before the Commission des lésions professionnelles (the CLP).

The CSST, having been informed by the employer that it had no suitable employment to offer the respondent, then decided that the respondent’s rehabilitation process would continue and that his occupational opportunities would be re-evaluated on the basis that the employer had no suitable employment to offer him. The respondent’s union asked the CSST to reconsider that decision, arguing that the functional limitations resulting from the employment injury at issue made the respondent a person with a handicap within the meaning of section 10 of the Charter, that he could not be discriminated against because of this handicap and that, in looking for suitable employment, the employer had to make every effort to facilitate his return to work without, however, imposing undue hardship on him. The CSST concluded that the principle of reasonable accommodation could not be applied to disputes under the Act respecting industrial accidents and occupational diseases (the A.I.A.O.D.) because the provisions of that statute are accommodation measures specific to employment injuries. The respondent challenged the CSST’s decision before the CLP, which confirmed the CSST’s decision and therefore dismissed the respondent’s application to subject the employer to a duty of accommodation under theCharter. The Quebec Superior Court allowed the motion for judicial review. The Quebec Court of Appeal dismissed the appeal.

36664    Ktunaxa Nation Council and Kathryn Teneese, on their own behalf and on behalf of all citizens of the Ktunaxa Nation v. Minister of Forests, Lands and Natural Resource Operations, Glacier Resorts Ltd.

(B.C.)

Charter of Rights – Freedom of religion – Aboriginal peoples

In March, 2012, the respondent Minister approved a master development agreement for the development of a ski resort by the respondent company on Crown land in the Jumbo Valley in the southeastern Purcell Mountains of B.C. The applicants brought a petition for judicial review of that decision, arguing that it violated their freedom of religion guaranteed under s. 2(a) of the Charter and breached the Minister’s duty to consult and accommodate asserted Aboriginal rights under s. 35 of the Constitution Act, 1982. The applicants assert that the proposed resort lies at the heart of a central area of paramount spiritual significance, being the Grizzly Bear Spirit’s home or territory (“Qat’muk”). They argue that allowing the development of permanent overnight human accommodation within Qat’muk would constitute a desecration and irreparably harm their relationship with the Grizzly Bear Spirit. The Spirit would leave Qat’muk, leaving them without spiritual guidance and rendering their rituals and songs about the Spirit meaningless. The Supreme Court of British Columbia dismissed the petition for judicial review on the basis that: i) s. 2(a) of the Charterdid not confer a right to restrict the otherwise lawful use of land on the basis that such use would result in a loss of meaning to religious practices carried on elsewhere; and ii) the process of consultation and accommodation of asserted Aboriginal rights was reasonable. The Court of Appeal for British Columbia dismissed the appeal.

36636   Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Alberta Human Rights Commission

(Alta.)

Human Rights – Right to equality

A worker was terminated from his employment with Elk Valley Coal Corporation when he tested positive for cocaine after a loader truck he was operating struck another truck. He had previously attended a training session and acknowledged his understanding of the employer’s policy of allowing workers with a dependency or addiction to seek rehabilitation without fear of termination, provided they sought assistance before an accident occurred. The worker admitted to regular use of cocaine on his days off but didn’t think he had a drug problem prior to the accident and testing. His union filed a complaint with the Alberta Human Rights Commission, claiming the worker was fired on account of his addiction disability. The tribunal concluded that while the complainant’s drug addiction was a disability protected under the legislation, there had been no prima facie discrimination. The worker was not fired because of his disability, but because he failed to stop using drugs, stop being impaired at work, and did not disclose his drug use. Alternatively, the tribunal held that the employer had shown accommodation to the point of undue hardship.

The Court of Queen’s Bench of Alberta dismissed the appeal from the decision of tribunal but disagreed with the alternative conclusion that the worker had been reasonably accommodated. A majority of the Court of Appeal of Alberta dismissed the appeal and allowed the cross-appeal.

36694   Alain Ostiguy, Valérie Savard v. Hélène Allie

(Que.)

Prescription – Immovable – Publication of rights

The applicants Mr. Ostiguy and Ms. Savard purchased a mountainside chalet on Mont Brome in Bromont, Quebec in 2011. A few months after they arrived, they noticed that their parking space, which could hold up to four cars, was being used by the respondent Ms. Allie’s son. They therefore gave him formal notice to stop using their parking space. Since he continued to do so, the applicants applied to the Superior Court for a permanent injunction to assert the registration of their title of ownership in the register of land rights against the respondent. By cross demand, the respondent claimed ownership of half of the applicants’ parking space by acquisitive prescription under the Civil Code of Québec. The Quebec Superior Court dismissed the motion to institute proceedings. The Quebec Court of Appeal dismissed the appeal.