34 | Big Suits
Scott, Charles F.
Lax O'Sullivan Scott
Lisus LLP
(416) 646-7997
cscott@
counsel-toronto.com
Mr. Scott provides
eff ective representation
in complex commercial,
securities, shareholder,
insolvency, class action
and employment cases in
trial and appellate courts.
He is an ACTL Fellow and
an arbitrator (MCIArb).
Shaughnessy,
Andrew M.
Torys LLP
(416) 865-8171
ashaughnessy@torys.com
Partner in Torys'
Litigation Practice.
Mr. Shaughnessy's
practice focuses on
intellectual property
litigation, with current
emphasis on complex
patent (especially
pharmaceutical) litigation
and Federal Court
practice.
Smith, Glenn
Lenczner Slaght Royce
Smith Griffi n LLP
(416) 865-2927
gsmith@litigate.com
Mr. Smith has a diverse
commercial litigation
practice with an
emphasis on class
actions and complex
insurance litigation. He
has a special interest
in product liability and
cases involving insurance
coverage of corporate
directors and offi cers.
Scott, QC, OC,
David W.
Borden Ladner
Gervais LLP
(613) 787-3525
dscott@blg.com
ACTL's fi rst Canadian
President. University
of Ottawa and LSUC
Honorary degrees.
Advocates' Society and
Law Society Medals
recipient. Order of
Canada offi cer. Lexpert
Lifetime Achievement
Award: Pro Bono/
Lexpert Zenith Award:
Celebrating Leadership.
Slaght, QC,
Ronald G.
Lenczner Slaght Royce
Smith Griffi n LLP
(416) 865-2929
rslaght@litigate.com
In addition to a
formidable reputation
in commercial and
securities litigation,
Mr. Slaght has built an
eclectic practice based
on his experience in
administrative law, real
property, intellectual
property and class
actions.
Snowden, Marcus B.
Snowden LLP,
Coverage Counsel
(416) 363-3343
marcus@snowdenllp.com
Mr. Snowden focuses on
commercial insurance
coverage-related
opinion, national and
cross-border monitoring
counsel and insurance
coverage litigation
services. He co-authors
a leading insurance text,
Annotated Commercial
General Liability Policy.
LEXPERT®Ranked Lawyers
possibility of litigation when a loss is caused by fi re, neither
party was in a position to assess the nature of and situation
surrounding the incident. Two documents, prepared shortly
a er the fi re, would have been prepared in this preliminary
stage of investigation. Hence, the Prothonotary's factual as-
sessment and conclusion should have been le undisturbed.
Second, while not expressly stating whether or not the origi-
nal order was discretionary in nature, the Court approached
the review of documents on the same basis as the Motions
Judge by determining whether there was a factual basis for
the Prothonotary's decision. ird, the Court held that
while a document may be prepared for multiple purposes,
the dominant purpose of its creation can still be in prepa-
ration for litigation. e balance of the documents met the
dominant purpose test.
e appellant, Webasto, was represented by Jim Doyle
and Vernon Pahl of Guild Yule LLP.
e respondents were represented by Michael Silva and
Franco Cabanos of Whitelaw Twining Law Corporation.
THAMBIAH V. MARITIME EMPLOYERS ASSOCIATION
DECISION DATE: APRIL 4, 2014
e Federal Court of Appeal affi rmed that questions of fact
and credibility cannot be re-litigated in judicial review.
e plaintiff , ambiah, was a longshoreman in the Port
of Montreal, who had failed the tests he needed to success-
fully pass in order to qualify for a better position.
e plaintiff contested his failing result in a complaint to the
Canadian Human Rights Commission alleging discrimina-
tion based on ethnicity, age and family status. e complaint
was referred to the Canadian Human Rights Tribunal (the
Tribunal). e Tribunal found the plaintiff 's credibility to be
very low, and consequently, that little weight should be given
to his testimony in which he attempted to demonstrate that he
had been the subject of discrimination. e Tribunal went on
to reject the complaint, concluding that the employer's testing
rules had been applied to the complainant without discrimi-
nation on the basis of his ethnicity, age or family status.
e plaintiff applied to the Federal Court of Canada for
judicial review of the Tribunal's decision. Applying the rea-
sonableness standard of review, the Federal Court rejected
the motion for judicial review, fi nding that it was not the
function of the Court to reassess the question of the plain-
tiff 's credibility. e Court was of the opinion that the factu-
al conclusions of the Tribunal were supported by the record.
On appeal to the Federal Court of Appeal, the plaintiff
argued that the employer's representative had lied in a state-
ment made in another proceeding and that the Tribunal's de-
cision should be set aside for that reason. e Appeal Court
rejected that argument. Noting that the alleged "lie" was a
mistake, which was pointed out and corrected by the em-
ployer before the Tribunal, and that there was no evidence
that the employer's representative was the source of the mis-
take, the Court went on to remark that the plaintiff 's alle-
gation was made without "any shadow of proof." Moreover,
the Court emphasized that the employer's representative was
not even cross-examined on the statement in question. e
Court concluded that it was patently unfair, at this stage in
the proceedings, for the plaintiff to accuse a witness of not
telling the truth when he had had the opportunity to cross-
examine the witness concerned and had not done so.
e Appeal Court concluded that there was no basis in
law for interfering with the Tribunal's conclusion regarding
the plaintiff 's lack of credibility.
