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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 and Citizenship

Refugee protection

Credibility

Refugee Protection Division’s treatment of evidence was unreasonable

Applicant N was Ukrainian citizen, who claimed that he faced persecution due to his bisexuality and relationship with another man. N was beaten by other men, causing him to leave for Canada to study in 2015. N returned to Ukraine to move in with his partner, but was again attacked when he tried to save his partner from being attacked. N returned to Canada, and later filed refugee claim. Refugee Protection Division (RPD) accepted likelihood of persecution based on sexual orientation, in Ukraine. However, RPD found N’s evidence lacking in credibility. RPD ruled that claim was manifestly unfounded. N applied for judicial review of RPD decision. Application granted. RPD made improper credibility findings, based on phone evidence which it used to determine that N’s relationship was not genuine. N clarified evidence when asked, but was not asked about details that could have further clarified matter for RPD. RPD made no finding as to authenticity of medical note, but determined that medical evidence was fraudulent. Proper consideration of this evidence could have changed outcome of application. N had reasonable explanation for amending his evidence, but this was not accepted by RPD. As whole, RPD’s treatment of evidence was unreasonable.
Nagornyak v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 680, 2017 FC 215, Cecily Y. Strickland J. (F.C.).

Immigration and Citizenship

Admission

Immigrants

Settlement funds not equating to economic establishment

Foreign national (BJ), 53-year-old Indian citizen, applied for permanent resident visa as federal skilled worker, and included his spouse and two children as accompanying family members. BJ’s self-assessed points were one point short of minimum amount for senior managers - financial, communications and other business services, but he submitted he had CAD $3,000,000 in assets and would transfer CAD $1,000,000 when they immigrated. Citizenship and Immigration Canada Program Support Officer (PSO) informed BJ that his application received positive determination of “eligibility to be processed,” but that final decision on his “eligibility to be selected” would be made by visa office. Immigration Officer (IO) refused BJ’s application because he was not satisfied BJ would be able to become economically established in Canada. BJ brought application for judicial review. Application dismissed. It was reasonable for IO to state and find that settlement funds did not equate to economic establishment for purpose of obtaining permanent resident visa in federal skilled worker class. While settlement funds might be relevant consideration when visa officer makes substituted evaluation under s. 76(3) of Immigration and Refugee Protection Regulations, they do not, in and of themselves, equate to economic establishment or likelihood of skilled worker to become economically established in Canada. IO’s determination was reasonable. While BJ had significant settlement funds, he provided no evidence as to his efforts to seek employment in Canada. IO was entitled to review all factors to determine whether points awarded properly reflected BJ’s ability to economically establish in Canada. PSO did not purport to make any decision regarding merits of BJ’s application.
Jain v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 1463, 2017 FC 377, Keith M. Boswell J. (F.C.).

Immigration and Citizenship

Refugee protection

Elements of protected refugee status


Claimants’ application for refugee protection denied in absence of well-founded fear of persecution

Refugee claimants were father, mother, and three children who were stateless Palestinians holding Lebanese travel documents. Father and children had been born in Kingdom of Saudi Arabia while mother had been born in United Arab Emirates before moving to Saudi Arabia when she married father. After father lost his job in Saudi Arabia and had to leave, claimants went to United States before coming to Canada. Claimants unsuccessfully applied for refugee protection. Claimants brought application for judicial review. Application dismissed. Finding of Refugee Protection Division (RPD) of Immigration and Refugee Board that claimants had not established well-founded fear of persecution in Saudi Arabia, and that they were not persons in need of protection, was reasonable. Father’s evidence was that he had no problems in Saudi Arabia other than losing his job. RPD was not required to consider whether claimants would be at risk in Lebanon. In absence of well-founded fear of persecution, fact that claimants alleged they could not return to Saudi Arabia was not, alone, sufficient to permit them to meet Convention definition.
Chehade v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 790, 2017 FC 282, Cecily Y. Strickland J. (F.C.).

Immigration and Citizenship

Refugee protection

Appeal or redetermination of claim

Findings of Refugee Appeal Division denying application for judicial review entitled to deference

Applicant, citizen of Kyrgyzstan, claimed refugee protection based on fear of violence from state and non-state extortionists that had resulted in him being beaten and hospitalized three times. Refugee Protection Division (RPD) found applicant’s story was not credible and rejected claim. Applicant appealed, submitting new evidence consisting of letter from witness to, and hospital records arising from, attack on wife and son. Refugee Appeal Division (RAD) found evidence did not raise serious issue as to credibility, denied oral hearing and affirmed decision of RPD. On application for judicial review, court found RAD had erred in its assessment of evidence by focusing on what it did not as opposed to what it did say and ordered redetermination before different panel. Second panel of RAD found new evidence was not credible, denied oral hearing and again affirmed decision of RPD. Applicant brought further application for judicial review. Application dismissed. RAD’s findings in regard to new evidence, including with respect to credibility, were entitled to significant deference. Such findings were not reached in vacuum but on totality of evidence which, in this case, included admittedly fraudulent claim made abroad. RAD’s findings were reasonable in circumstances and rendered decision with respect to oral hearing reasonable.
Belek v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 649, 2017 FC 196, Alan S. Diner J. (F.C.).

Criminal Law

Sentencing

Types of sentence

Parole Board not required to balance Charter values

In November 2014, Board received information from Intelligence Unit of Niagara Regional Police Service that VB had been charged with offences pursuant to Controlled Drugs and Substances Act (“CDSA”) and Criminal Code. Board subsequently revoked pardon pursuant to section 7 of Criminal Records Act (“CRA”). VB brought application seeking judicial review of October 27, 2015 decision by Parole Board of Canada (“Board”) made pursuant to CRA to revoke pardon he was previously granted in 2008. Application dismissed. Board’s decision was reasonable. Board was not required to conduct balancing of Charter interests or values implicated in revocation of pardon with statutory objectives of CRA in absence of any such submissions to the Board from VB. Board was not, in circumstances of case, required to proactively conduct such balancing exercise. Board did not err in applying statutory provisions and exercising its discretion to revoke VB’s pardon based on information it relied on to determine that VB no longer met good conduct criteria.
Buffone v. Canada (Attorney General) (2017), 2017 CarswellNat 1308, 2017 FC 346, Catherine M. Kane J. (F.C.).

Aboriginal Law

Government of Aboriginal people

Councils

Process that resulted in passage of resolution breached procedural fairness

Respondents, purporting to act as chief and council of First Nation, passed resolution that purported to vest responsibility for First Nation school board in chief and council and to invalidate decisions made by board that were not supported by quorum of council and/or required ratification of such decisions by majority of council. Effect of resolution could include invalidating board’s decision to restructure and to dismiss Director of Education. Applicants maintained that resolution was not valid because it was passed at meeting of council that was not duly convened and without notice to chief and council, and resolution was beyond jurisdiction of chief and council. Applicants applied for judicial review of resolution. Application granted. Process that resulted in passage of resolution breached procedural fairness. Meeting was called for only one purpose, which was to discuss forensic audit, and it was not regular meeting of council but was more akin to special meeting. Respondents could not opportunistically spring resolution on chief at meeting called for different purpose. Although all councillors were present at meeting and chief was aware of concern of some councillors regarding school board, applicants had no advance warning that resolution would be tabled, or of its wording, and they had no opportunity to prepare and to make submissions. Respondents’ actions in passing resolution without sufficient notice to chief and to all councillors and without providing all councillors with opportunity to make representations was breach of procedural fairness, and resolution was invalid. Resolution failed to recognize that school board was separate entity that was accountable to Band and not directly to chief and council, that school board election procedures could not be unilaterally amended by chief and council, and that resolution that established band must be respected.
Peguis First Nation v. Bear (2017), 2017 CarswellNat 356, 2017 FC 179, Catherine M. Kane J. (F.C.).

Evidence

Examination of witnesses

Rebuttal

Recalling expert witness to testify amounted to case-splitting

Plaintiffs’ expert witness L supplied report and testimony on effect of use of lake as reservoir for hydroelectric generation and water control purposes on First Nation. Crown provided report from expert witness R. After R was qualified as expert, Crown sought to have additional documents entered as exhibits. Plaintiffs objected on grounds documents did not form part of R’s report. R was permitted to testify on additional documents. At conclusion of R’s testimony, plaintiffs renewed objection to additional documents and indicated wish to recall L to testify. Plaintiffs were directed to have L prepare supplementary report outlining evidence to be tendered. Plaintiffs brought motion for order permitting recall of L as witness. Motion dismissed. Recalling L to testify amounted to case-splitting. L’s proposed testimony addressed matters not currently in evidence or addressed matters L had every opportunity to address in initial reports or oral evidence. Alleged inaccuracies in data presented by R or in additional documents could be addressed by counsel. Certain proposed corrections were irrelevant and unnecessary. R’s report was delivered years ago and L previously responded to it.
Lac Seul Band of Indians v. Canada (2017), 2017 CarswellNat 213, 2017 FC 75, Russel W. Zinn J. (F.C.).
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