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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

REFUGEE STATUS

All documents filed must be considered before coming to conclusion

Foreign national was alleged citizen of Democratic Republic of Congo (“DRC”) who claimed refugee protection on basis of his political opinion and risk of torture if returned to DRC. Foreign national fled DRC, and came to Canada using false British passport, on which he had inserted his photo. University letter and transcript submitted by foreign national contained numerous spelling errors. Foreign national also submitted driver’s licence and voter card, which included photograph and also submitted arrest warrant, all of which board concluded were not genuine documents. Board rejected claim on ground foreign national had not established his identity. Application granted. Board failed to deal with applicant’s original voter card, which was national identity card in DRC, and his driver’s licence. Board could not come to reasonable assessment of applicant’s identity by only focusing on those documents where authenticity appeared doubtful and ignoring those documents which appeared to be trustworthy. All documents filed and explanations provided by applicant must be considered before coming to conclusion. Board erred in determining that applicant had not established his identity.
Kabongo v. Canada (Minister of Citizenship and Immigration) (Oct. 25, 2013, F.C., Yves de Montigny J., File No. IMM-8204-12) 235 A.C.W.S. (3d) 475

Administrative Law

JUDICIAL REVIEW

Rule of non-interference with ongoing administrative processes vigorously enforced

Applicant sought to prohibit or restrain ongoing investigation by Public Sector Integrity Commissioner into allegations of wrongdoing made against her pursuant to s. 26 of Public Servants Disclosure Protection Act (Can.). Attorney General, on behalf of named respondents, applied for order striking out applicant’s notice of application for judicial review. Attorney General claimed application was premature, as being contrary to rule of non-interference with ongoing administrative processes, which might in any event not come to conclusion against applicant, thereby rendering matter moot. Application allowed. Rule of non-interference with ongoing administrative processes was vigorously enforced, being permitted only in narrowest of exceptional circumstances measured against exceptionally high threshold. In this case, there were no exceptional circumstances that would permit interference with commissioner’s on-going investigation.
Cousineau-Mahoney v. Canada (Public Sector Integrity Commissioner) (Nov. 7, 2013, F.C., Peter Annis J., File No. T-1210-13) 235 A.C.W.S. (3d) 287.

Administrative Law

JUDICIAL REVIEW

No authority to suspend applicant’s participation in program for more than six weeks

Application by prison inmate for judicial review of decision of Deputy Commissioner of Corrections. Commissioner denied applicant’s third level grievance over his suspension from full-time employment at medium security institution where he was incarcerated. Applicant was at work on May 11, 2011 when another inmate was cleaning panel saw and floor with compressed air. Applicant told other inmate to stop because room was filling up with dust in air. Argument ensued, during which other inmate headbutted applicant and he then punched him several times. Applicant fell on floor and he was unconscious. Security was called and applicant was taken to health care. Applicant was suspended for six months since he was involved in fight. Decision was made because applicant refused to participate in program assignment and it was made even though applicant was found not to be aggressor. It was upheld as it went through grievance process. Application allowed. Commissioner claimed that authority for suspending applicant was contained in s. 104(1) of Corrections and Conditional Release Regulations (Can.) but he did not properly or reasonably exercise statutory authority to suspend applicant under that provision. Applicant did not refuse to participate in program by virtue of his actions on May 11 and it was unreasonable to reach that conclusion and to suspend him. There was also no authority to suspend applicant’s participation in program for more than six weeks. Decision was also unreasonable because applicant followed his correctional plan, he fulfilled his shop steward duties at time of incident and he was victim and not aggressor. Given that applicant’s record in workplace was excellent it was unreasonable that six-month suspension was ordered. Applicant was to be reinstated retroactively with payments due and owing to him from date of suspension of May 11, 2011.
Johnson v. Canada (Commissioner of Corrections) (Dec. 3, 2013, F.C., Michael D. Manson J., File No. T-2136-12) 110 W.C.B. (2d) 647.

Citizenship

LOSS OF CITIZENSHIP

Court could not stay action despite extraordinary and totally unexplained delay

Motion by Minister for summary judgment and declaration that defendant obtained Canadian citizenship by false representation. Applicant became permanent resident of Canada in 1997. Applicant applied for citizenship in December 2000. In 2002, defendant was convicted of uttering threats, possessing weapon and failure to comply with recognizance and was placed under probation order. In July 2002, defendant provided his fingerprints to Toronto Citizenship office. In October 2002, defendant was charged by Toronto Police with possession of controlled substance, possession of property obtained by crime, failure to comply with recognizance and of carrying concealed weapon. In January 2003, defendant attended citizenship hearing, and signed attestation stating that statements made were true and correct and he confirmed that he had not been subject to immigration or criminal proceedings since filing application for citizenship. Defendant was granted citizenship in March 2003. In January 2005, defendant was convicted of robbery, aggravated assault and theft. In January 2006, defendant was charged by Toronto Police with making false statement for citizenship and defendant pleaded guilty to charge. On December 19, 2011, defendant was served with Notice in Respect of Revocation of Citizenship. Minister provided no explanation for more than five-year delay in taking that action after guilty plea. Defendant contended that Minister’s delay constituted abuse of process, thereby rendering proceedings unfair. Minister’s motion for summary judgment granted; court declared that respondent obtained Canadian citizenship by false representation or fraud knowingly concealing material circumstances. In order to be considered abuse of process, there must be evidence that delay directly caused significant prejudice to amount to abuse of process. Defendant here offered no evidence of impact delay had on him. Given absence of evidence of impact of delay on defendant, despite extraordinary and totally unexplained delay by Minister, court could not conclude that this action ought to be stayed.
Canada (Minister of Citizenship and Immigration) v. Bilalov (Aug. 21, 2013, F.C., Russel W. Zinn J., File No. T-1688-12) 234 A.C.W.S. (3d) 842.

Aboriginal Peoples

CROWN RELATIONSHIP

Appellant failed to distribute assets and follow orders

Appellant was appointed administrator of estate of uncle, an Indian, who died without will and whose main assets included two undivided parcels of land on reserve. Sixteen years after appellant’s appointment, estate and land remained undivided among heirs. Minister ordered appellant’s removal under s. 43 Indian Act (Can.), for failure to fulfill duties, despite numerous requests by department and complaints by heirs. Appellant maintained undivided land was issue unique to reserves and he was seeking to obtain consensus among heirs to reach agreement that would allow land to remain for family use. Appeal from Minister’s decision ordering appellant’s removal. Appeal dismissed. Minister had discretionary authority to remove administrators under s. 43 and jurisprudence established standard of review was reasonableness. Minister applied manual in determining removal was justified and, over the years, communicated concerns to appellant, advised him of complaints, gave him deadlines to complete land transfers and warned non-compliance would lead to his removal. After receiving complaint letter signed by all heirs except appellant’s mother, Minister even gave appellant one additional year to achieve consensus before ordering his removal. Minister did his best to support appellant over 16 years, but appellant failed to distribute assets and follow orders as required under Indian Estates Regulations (Can.). Appellant was fully advised of complaints, basis for removal and given time to comply. Minister’s task was to determine whether administrator was exercising duties, not give appellant opportunity to address complainants’ allegations. Appellant was afforded procedural fairness and decision was reasonable.
Longboat v. Canada (Attorney General) (Nov. 18, 2013, F.C., Glennys L. McVeigh J., File No. T-1608-11) 234 A.C.W.S. (3d) 816.

Civil Procedure

PLEADINGS

Plaintiff’s approach of instituting two actions raised possibility of contradictory judgments

Plaintiff manufactured ice cider named “Domaine Pinnacle”. Defendants distributed flavoured vodkas called “Pinnacle”. Plaintiff filed motion to institute proceedings in Quebec Superior Court, seeking to obtain permanent, interlocutory and interim injunction against defendant B. Inc. to prevent commercialization of vodkas and other Pinnacle products in Quebec market. Plaintiff also instituted proceedings in Federal Court against defendants alleging unfair competition and trademark infringement. Defendants counterclaimed for declaration that their mark did not infringe plaintiff’s trademark. Defendants indicated their intention to request stay of proceedings in Quebec Superior Court, on basis that there was bifurcation of proceedings in Federal Court as far as Quebec was concerned and of lis pendens and forum non conveniens. Plaintiff filed unsuccessful motion to amend statement of claim to explicitly exclude Quebec from scope of Federal Court action. Prothonotary found that amendment did not seek to determine real questions in controversy between parties and did not seek to serve interests of justice. Plaintiff appealed. Appeal dismissed. Plaintiff’s approach of instituting two actions in two separate jurisdictions concurrently raised not only issue of multiplicity of proceedings but also real possibility of contradictory judgments. Court was not satisfied that impugned order was clearly wrong and that exercise of discretion by prothonotary was based upon wrong principle or misapprehension of facts.
Domaines Pinnacle Inc. v. Beam Inc. (Jul. 30, 2013, F.C., Richard Boivin J., File No. T-290-13) 234 A.C.W.S. (3d) 605.

Aboriginal Peoples

NATURAL RESOURCES

Court could not substitute its own assessment as to what was in best interests of band

Parties were engaged in complex litigation. Applicants alleged various breaches of trust or fiduciary duties by Canada related to Canada’s management of mineral rights associated with applicants’ reserve lands, in particular, management of oil and gas leases on land and resulting royalties. Applicants brought motion seeking transfer of current and future money that represented royalties from oil and gas leases on applicants’ reserve lands and interest earned on royalties, which were held by Canada in trust for or for benefit of First Nation. Subgroups of First Nation, who were separately recognized as bands under Indian Act (Can.), claimed they had right to insist on transfer of per capita share of funds. Minister of Aboriginal Affairs and Northern Development made decision not to effect transfer of money in accordance with terms proposed by applicants. Motion dismissed. Applicants had not sought judicial review of Minister’s decision but requested that court accept and endorse terms of transfer they proposed and order Minister to comply with them. However, applicants had not established legal basis upon which court could accept and endorse their terms of transfer and order Minister to comply, irrespective of powers granted to Minister under Act. There was no basis to usurp Minister’s exercise of discretion under s. 64(1)(k) of Act. Court could not disregard powers under Act that Parliament had granted to Minister and substitute its own assessment as to what was in best interests of band. No convincing legal authority or principle had been provided to justify such substitution. Applicants were essentially seeking order in nature of mandamus, which court did not have jurisdiction to grant in context of motion. Concerns of Canada could not be described as mere impediments.
Bearspaw Band v. Canada (Sep. 25, 2013, F.C., James Russell J., File No. T-2344-93) 234 A.C.W.S. (3d) 531.
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