Case Law
is a sample selection from the weekly summaries of notable unreported
civil and criminal court decisions published in Law Times newspaper.
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Immigration |
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Federal Court of Canada
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REFUGEE STATUS
Panel unreasonably imposed obligation on child to seek state protection for herself
Application for judicial review of decision refusing applicant’s refugee protection application. Applicant was citizen of St. Vincent and Grenadines. Applicant had lived with mother and stepfather, her only family there. Stepfather began sexually assaulting applicant when she was 12 years old and threatened to kill her and her mother if they reported him to authorities. Sexual assaults continued until mother helped applicant escape to Canada when she was 17 years old. Applicant hid with mother’s friend for several years until she gave birth and had to move into shelter. Once in shelter, applicant learned she could claim protection. Panel found state protection was available in St. Vincent and applicant made no effort to obtain it. Panel found there, despite problems with violence against women in St. Vincent, there were laws against abuse and rape and application could safety return as adult. Applicant argued panel completely disregarded her personal circumstances. Application allowed. Panel unreasonably imposed obligation on sexually molested child to seek state protection for herself. Panel ignored portions of relevant evidence. Panel cited document to support its conclusion state protection existed, yet failed to mention same document later stated officers were poorly trained, ineffective and insensitive to victims. Panel relied on social programs and shelter to support conclusion applicant could safety return, yet failed to mention that documents noted it was not clear whether social programs were available for victims of violence and shelter had been promised to citizens for years but was never built. Panel failed to consider applicant had no other family in St. Vincent and Grenadines and would likely be unable to establish herself independently.
James v. Canada (Minister of Citizenship and Immigration) (May 18, 2010, F.C., Mainville J., File No. IMM-5039-09) 188 A.C.W.S. (3d) 826 (15 pp.).
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Courts |
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Federal Court of Canada
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ABUSE OF PROCESS
Release was enforceable and barred request for damages
Application by former tenant for order requiring respondent to correct its practices, publish notice of corrective action taken, pay $30,000 damages and costs. Respondent was non-profit housing corporation that applicant lived in from 1993 to 2007. Respondent’s board commenced eviction proceedings against applicant and applicant retained lawyer who submitted medical evidence to support request for adjournment. Board declined to adjourn proceedings and voted to evict applicant. Applicant appealed and board distributed notices to 100 special numbers that included copies of applicant’s medical records. Board dismissed applicant’s appeal and commenced action when she refused to vacate. Applicant counterclaimed for damages for breach of privacy and harassment. Applicant and respondent settled. Respondent argued that release signed at settlement barred this application. Application dismissed. Applicant’s privacy complaint before Human Rights Commission continued and commission had recommended respondent change its by-laws, which respondent took seriously. Applicant had moved away, so there was no basis for ordering respondent to correct practices and publish notice. Release signed by applicant was entitled “Full and Final Release” and parties were represented by counsel and of relatively equal bargaining power. Release specified that applicant released respondent from all actions and damages. As this application was based on same facts already occurred and litigated, release acted as bar. Respondent paid valuable consideration for release and parties acted as though it was a complete release, so fact that applicant proceeded with privacy complaint did not change fact that release was enforceable and barred request for damages. Application dismissed with costs to respondent.
Arcand v. Abiwyn Co-operative Inc. (May 13, 2010, F.C., O’Keefe J., File No. T-788-09) 188 A.C.W.S. (3d) 689 (23 pp.).
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