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Citizenship

APPEAL

Officer erred in finding adoption entered into primarily for acquiring benefit of immigration or citizenship

Application for citizenship by child adopted by Canadian citizen. Adoptive mother was Canadian citizen who had applied to adopt five-year-old daughter of her cousin in St Vincent, who was single mother. Adoptive mother began adoption process in 2010 when child was baby. In 2010 court in St Vincent granted adoption of child to adoptive mother. In December 2013 adoptive mother submitted application for Canadian citizenship for child. Throughout interview both adoptive mother and biological mother gave same motivation/reasons for adoption i.e. comparatively superior medical care and schooling in Canada as opposed to St. Vincent. Adoptive mother wished to offer benefits of Canadian citizenship to child. Officer rejected application on ground adoptive mother  had failed to establish that adoption was in  best interests of child  and had not created  genuine parent child relationship as required by s. 5.1(1)(b) of Citizenship Act (Can.). Officer further concluded that adoption was entered into primarily for purpose of acquiring citizenship status for child. Adoptive mother applied for judicial review. Application granted. Legal relationship between biological mother and child was severed by St. Vincent court via grant of adoption. Fact that  adoptive and biological parent wished to give  child  better life in terms of access to medical care and schooling could not  support  finding that  primary intention of adoption was to evade immigration laws. Officer did not consider positive home study report, evidence that adoptive mother did not have children, was married with good income and wished to help others. Officer erred in making a finding that adoption was entered into primarily for acquiring benefit of immigration or citizenship and in finding that adoption was not in best interests of child. Officer also failed to consider steps adoptive mother would take, going forward, in order to establish genuine relationship with child, including fact that adoptive mother intended to take nine months maternity leave when child arrived in Canada.
Young v. Canada (Minister of Citizenship and Immigration) (Mar. 13, 2015, F.C., Donald J. Rennie J., File No. T-1527-14) 252 A.C.W.S. (3d) 15.

Administrative Law

JUDICIAL REVIEW

Applicant did not provide reasonable explanation for delay in bringing application

Respondent granted disposal at sea permit to ARS authorizing sinking of decommissioned ship to turn it into artificial reef at Marine Park. Applicant asserted respondent was prohibited by law from authorizing disposal at sea of ship containing allegedly banned substances (TBTs) in its hull. TBTs in ship’s hull were common ingredients in anti-fouling paint used on ship’s hull to prevent barnacles from growing on ship. Applicant sought judicial review. Respondent asserted application was filed too late. Application dismissed. Application was not commenced within 30-day time-limit and was filed too late. Application was filed more than two months beyond time-limit. Respondent should not be prejudiced by fact that it did not raise issue of lateness until it filed written submissions on application. Contents of application were not sufficient to transform what was otherwise challenge that was clearly focused on decision to issue permit, into challenge of broader course of conduct that included minister’s refusals to establish board of review and to suspend permit and 30-day time-limit applied. Court declined to exercise jurisdiction to grant extension of time. ARS suffered substantial prejudice as result of applicant’s failure to file application within time period. Applicant did not provide reasonable explanation for delay. Applicant did not show any intention to bring application sooner. Application was dismissed on merits. In any event respondent was not prohibited by law from issuing permit and issuance of permit was not unreasonable. Anti-fouling coating of ship’s hull was reasonably determined to be in non-active state. Respondent conducted extensive and thorough analysis over several years prior to issuance of permit.
Save Halkett Bay Marine Park Society v. Canada (Minister of the Environment) (Mar. 10, 2015, F.C., Paul S. Crampton C.J., File No. T-10-15) 252 A.C.W.S. (3d) 2.

Civil Procedure

PARTIES

Groups granted leave to intervene in appeals respecting Northern Gateway Pipeline Project

Parties were disputing reasonableness and legality of Northern Gateway Pipeline Project’s approval. Consolidated matters were applications and appeals from decisions from Governor in Council, National Energy Board and Joint Review Panel. Amnesty International and Canadian Association of Petroleum Producers brought motions to intervene under R. 109 of Federal Courts Rules (Can.). Motions granted. Both proposed interveners had genuine interest in matter and were able to bring knowledge, skills and resources before court. International law was very much at large on all issues in many different ways in consolidated matter. Amnesty International was granted leave to intervene on terms, primarily because of its expertise in international law issues and potential that international law issues could be relevant, albeit in limited ways. Canadian Association of Petroleum Producers could shed light on discussion of whose interests might be affected if project’s approval was overturned. Matters had complex and important dimensions that needed to be exposed to perspectives beyond those offered by particular parties before court.
Gitxaala Nation v. R. (Mar. 16, 2015, F.C.A., David Stratas J.A., File No. A-56-14, A-59-14, A-63-14, A-64-14; A-67-14, A-437-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14) 252 A.C.W.S. (3d) 39.

Constitutional Law

CHARTER OF RIGHTS

Section 241(b) of Criminal Code (Can.) is constitutionally invalid

Plaintiffs challenged constitutional validity of s. 241(b) of Criminal Code (Can.). Supreme Court of Canada had upheld section 19 years earlier by finding any Canadian Charter of Rights and Freedoms violations were saved pursuant to s. 1 .Plaintiffs suffering from fatal diseases sought ability to access physician-assisted suicide when life became unbearable. Trial judge declared s. 241(b) of no force and effect. Trial judge held that Supreme Court of Canada’s conclusion could be reconsidered in view of new principles of fundamental justice recognized after the decision and new factual record. Majority of Court of Appeal found that trial judge erred in holding she was not bound by earlier decision and reversed trial judge’s decision. Appeal allowed and declaration of invalidity restored. Trial judge was entitled to revisit earlier judgment in view of new evidence and jurisprudential changes. Absolute prohibition on assisted suicide impaired plaintiffs’ liberty and security of the person. Legislation was overbroad and not in accordance with the principles of fundamental justice. Legislation failed to minimally impair plaintiffs’ rights.
Carter v. Canada (Attorney General) (Feb. 6, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35591) Decision at 244 A.C.W.S. (3d) 600 was reversed.  252 A.C.W.S. (3d) 74.

Constitutional Law

COURTS

Judge had no jurisdiction to declare that Koran was supreme law

Application by accused CE for order that applicable law for trial should be Koran and not Criminal Code. Accused RJ and CE were charged with various terrorism-related offences. RJ retained counsel and CE was self-represented. CE refused to be represented because he would not be represented by any counsel who accepted Criminal Code and not Koran as governing law for trial. He was unable to find counsel who would agree with this position. Application dismissed. Judge had no jurisdiction to declare that Koran was supreme law for purposes of Canadian criminal trial. He was bound to uphold Constitution as supreme law of Canada and to uphold rule of law as part of that Constitution.
R. v. Jaser (Jun. 26, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-10000655-0000) 120 W.C.B. (2d) 339.

Appeal

GENERAL

Accused not entitled to state-funded counsel

Accused brought two applications: “Rowbotham Application” and “s. 684(1) Application”. Both applications sought order that agency, Attorney General of Ontario on Rowbotham Application and Legal Aid Ontario on s. 684(1) Application, provide funding for counsel for accused in respect of his appeals from his convictions for assault and mischief. Accused now alleged his ss. 7 and 11(d) rights had been violated, as Legal Aid Ontario had refused to grant certificate for counsel for his appeal. Crown conceded that first and second portions of Rowbotham test had been satisfied by accused. Argument on this application therefore focused on part three of test: whether or not this appeal involved serious charges that presented in factually and legally complex manner such that accused could not have fair appeal without assistance of counsel. Application dismissed. Plain reading of s. 684(1) indicated that it only creates jurisdiction for judges sitting as Ontario Court of Appeal justices to have such authority to entertain s. 684(1) type applications. Court was not sitting in that capacity. Accused’s appeal was neither complex and did not involve serious charges within context of Rowbotham application. Although there had been delays in appeal to date they were largely product of accused’s own conduct and not inherent complexity. Accused’s arguments concerning denial of Legal Aid at first instance did not relate at all to merits of his appeal, complexity of matters raised in appeal, nor seriousness of charges faced by accused. Accused’s appeal involved straightforward matter and accused was not facing sufficiently serious consequences to require Charter remedy of requiring state to provide funding for counsel. Accused could proceed to have fair appeal without assistance of counsel paid for by state.
R. v. Schell (Mar. 26, 2015, Ont. S.C.J., F. Bruce Fitzpatrick J., File No. Thunder Bay CR-13-0085-AP) 120 W.C.B. (2d) 311.

Constitutional Law

CHARTER OF RIGHTS

Malice does not provide useful liability threshold for Charter breach based on failure to disclose in criminal proceedings

In 1983, H convicted of 10 sexual offences, declared dangerous offender and sentenced to indefinite incarceration. H remained incarcerated until 2009. Convictions subsequently quashed. H sought damages, pleading causes of action in negligence, malicious prosecution and breach of Charter rights. Province applied to strike out certain paragraphs of claim and dismiss claims grounded in negligence and Charter breach. Claim in negligence dismissed but Charter claim allowed to proceed since it was based on allegations of malicious conduct. Court noted that if H intended to pursue Charter damages claim for conduct falling short of malice, he required leave to amend pleadings. H applied to amend pleadings to particularize circumstances in which Province could be liable for Charter breach for non-malicious conduct. Judge granted application, finding that threshold lower than malice should apply and that s. 24(1) damages justified if Crown’s conduct constitutes marked and unacceptable departure from reasonable standards expected of prosecutors. Province’s appeal allowed but H’s further appeal allowed. Cause of action will lie where Crown, in breach of constitutional obligations, causes harm to accused by intentionally withholding information when it knows, or would reasonably be expected to know, the information is material to the defence and that failure to disclose will likely impinge on accused’s ability to make full answer and defence. Threshold high but lower than malice. Claimant must demonstrate that state has breached his Charter rights and that award of damages would serve compensation, vindication or deterrence function. Once that burden met, onus shifts to state to rebut claimant’s case. Malice requires more than recklessness or gross negligence; it requires claimant to demonstrate willful and intentional effort to abuse or distort proper role within criminal justice system. Malice not providing useful liability threshold. Malice requires determination of whether prosecutor motivated by improper purpose, an inquiry relevant to highly discretionary decisions. Decision to disclose relevant information not discretionary; it is constitutional obligation. Compelling good governance concerns raised in malicious prosecution jurisprudence remains relevant, mandating high threshold that substantially limits scope of liability. H alleged very serious instances of wrongful non-disclosure that demonstrated shocking disregard for Charter rights. H may seek to amend pleadings to include claim for Charter damages grounded in wrongful non-disclosure.
Henry v. British Columbia (Attorney General) (May. 1, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35745) Decision at 237 A.C.W.S. (3d) 360 was reversed.  251 A.C.W.S. (3d) 590.

Bankruptcy and Insolvency

COURTS AND PROCEDURE

Chapter 11 proceedings under United States Bankruptcy Code constituted foreign proceeding for purposes of Companies’ Creditors Arrangement Act (Can.)

On January 15, 2015, CEOC Inc and certain of its subsidiaries commenced voluntary reorganization by filing petitions for relief in United States bankruptcy court in Illinois. On January 12, 2015, however, competing involuntary petition in respect of CEOC Inc, but not subsidiaries, had been filed in United States bankruptcy court in Delaware. By order of court in Delaware, Illinois proceeding stayed pending determination of appropriate venue. Meanwhile, CEOC Inc authorized CWE Ltd, indirect subsidiary incorporated in Ontario, who operated casino on behalf of Ontario Lottery and Gaming Corporation, to bring within application in Ontario. CWE Ltd only one of 173 chapter 11 debtors not incorporated in US jurisdiction. With authorization of sole shareholder, CWE Ltd applied under Companies’ Creditors Arrangement Act (Can.) (CCAA) for Initial Recognition Order recognizing Illinois proceeding as foreign main proceeding, declaring CWE Ltd to be foreign representative and staying proceedings against all chapter 11 debtors. CWE Ltd also applied for Supplemental Order recognizing in Canada and enforcing certain first day orders made in Illinois proceeding (permitted under Delaware stay order), staying any claims, rights, liens or proceedings against or in respect of chapter 11 debtors, their business and property, officers and directors and restraining any person or entity from discontinuing supply of products or services to chapter 11 debtors. CWE Ltd intended to continue operating casino throughout chapter 11 proceeding. There was no intention to restructure business or operations, or to compromise any obligations. Application allowed. Chapter 11 proceedings under United States Bankruptcy Code constituted foreign proceeding for purposes of CCAA. Under s. 45(1) of CCAA, foreign main proceeding was foreign proceeding in debtor’s “centre of main interest”. Given location of other 172 chapter 11 debtors, and manner in which subsidiaries operated, that was United States. Chapter 11 proceeding should be recognized as foreign main proceeding. Foreign representative did not have to be appointed by court. Authorization by CEOC Inc and own shareholder enough to give CWE Ltd such status. In order to maintain status quo and protect assets of chapter 11 debtors, and allow CWE Ltd to continue with business as usual during chapter 11 proceeding, relief sought in Supplemental Order should also be granted except with respect to stay of actions against officers and directors.
Caesars Entertainment Operating Co., Re (Jan. 19, 2015, Ont. S.C.J., G.B. Morawetz R.S.J., File No. CV-15-10837) 251 A.C.W.S. (3d) 553.

Appeal

FRESH EVIDENCE

Fresh evidence could have been obtained through reasonable diligence

Appellant noted former solicitor in default. Trial judge found solicitor had not served appellant well but concluded appellant failed to establish any damages arising from dismissal of her two actions solicitor was handling. Appellant sought to adduce fresh evidence. Appellant appealed. Appeal allowed. Trial judge provided no explanation for why appellant should not have judgment for retainer paid to former solicitor and appellant was entitled to that amount. There was nothing in record or in fresh evidence to establish any other damages resulting from solicitor’s actions. Motion for fresh evidence was dismissed because fresh evidence could have been obtained through reasonable diligence before trial.
Roberge v. Munro (Mar. 26, 2015, Ont. C.A., Robert J. Sharpe J.A., S.E. Pepall J.A., and K. van Rensburg J.A., File No. CA C58831) 251 A.C.W.S. (3d) 546.

Immigration

EXCLUSION AND EXPULSION

Hearing not precluded by removal of claimant from Canada

Refugee claimants were Roma citizens of Hungary who had made unsuccessful refugee claim. Claimants’ motion for stay of removal was dismissed and claimants departed Canada and returned to Hungary in November 2014. Claimants had brought application for judicial review of denial of refugee claim. Minister contended that s. 96 of Immigration and Refugee Protection Act (Can.), required that refugee claimants be outside their country of nationality, and s. 97 of Act required that claimants be physically present in Canada, and therefore application for judicial review should be dismissed on ground that it had become moot. Motion to dismiss on ground of mootness denied; application to be set down for hearing on its merits. Parliament did not intend to preclude court and board from hearing claim for refugee protection after person had been removed from Canada pursuant to s. 48(2) of Act. In absence of express statutory language rights conferred on refugee claimants by Act were not rendered nugatory by performance of Minister’s duty to execute removal order as soon as reasonably practicable. Even if matter had become moot, this was appropriate case in which court should exercise its discretion to deal with matter on its merits. As interlocutory judgment concerned jurisdiction of Refugee Protection Division to reconsider decision after applicant for refugee protection has been removed from Canada was separate, divisible, judicial act, question was certified: Is application for judicial review of decision of Refugee Protection Division moot where individual who was subject of decision has involuntarily returned to his or her country of nationality, and, if yes, should court normally refuse to exercise its discretion to hear it?.
Molnar v. Canada (Minister of Citizenship and Immigration) (Mar. 23, 2015, F.C., Simon Fothergill J., File No. IMM-7227-13) 251 A.C.W.S. (3d) 651.
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