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Immigration

JUDICIAL REVIEW

Applicant entitled to know what indictable offence was being cited against him

Applicant was citizen of Canada and Brazil. Wife was citizen of Brazil and claimed New Zealand citizenship. Wife paid paralegal to obtain her New Zealand citizenship and passport. Applicant and wife travelled and wife was denied boarding because New Zealand passport was found to be counterfeit. Applicant’s passport was seized on return to Canada. Applicant denied he knew wife’s passport was counterfeit. Applicant was denied passport services for five years. Director found applicant was involved in misuse of his passport by attempting to assist improperly documented person to travel. There was no evidence applicant was charged or convicted of committing indictable offence in Canada or any offence in foreign country. Applicant sought judicial review. Application granted. There was no finding of indictable offence. Director had no jurisdiction to make such finding because it was matter of criminal law to be determined by judge not government official. Director did not identify provisions of Immigration and Refugee Protection Act (Can.), that was to form basis of indictable offence. Applicant was entitled to know what indictable offence was being cited against him and failure to do so was breach of natural justice and procedural fairness. In interpreting s. 10(2)(b) of Canadian Passport Order, power to revoke was dependent on commission of indictable offence in Canada or offence of similar type in another country. Words “in committing an indictable offence” meant that pre-condition to revocation or service denial was commission of indictable offence by subject person. Without identifying which offence was claimed to be in issue, it was not possible for director to show reasons to be reasonable.
Dias v. Canada (Attorney General) (Jan. 21, 2014, F.C., Michael L. Phelan J., File No. T-1344-12) 236 A.C.W.S. (3d) 989.

Citizenship

APPEAL

Serious irregularity had allowed applicant to obtain adoption order in Ukraine

Applicant was citizen of Canada and Ukraine. Applicant worked as medical doctor and had home in Saskatchewan, and she also maintained home in Ukraine. Applicant was granted approval to adopt children from Ukraine through international adoption. However, applicant adopted two children in Ukraine through domestic private adoption approved by Ukrainian Court. Officer refused to grant citizenship to applicant’s adopted children under s. 5.1(1) of Citizenship Act (Can.). Officer was not satisfied that adoption was in accordance with Ukraine legislation. Officer was not satisfied that applicant disclosed full information respecting place of permanent residence and marital status to Ukrainian judge who made decision on adoption. Applicant applied for judicial review of officer’s decision. Application dismissed. Officer was obligated to find out and consider whether adoptions were in accordance with laws of place where they took place and laws of country of residence of adopting citizen. Officer discovered that applicant had not effected international adoption, but had secured domestic adoption in Ukraine. Officer was obligated to determine how Canadian citizen, who was resident in Saskatchewan at time of citizenship applications, was able to obtain domestic adoptions in Ukraine. Officer concluded that applicant secured domestic adoptions because she presented herself as Ukraine resident. Applicant did not reveal she was also resident of Canada and was married to non-Ukrainian resident of Canada who lived in Saskatchewan where applicant had medical practice. Officer had good reason to conclude that serious irregularity had allowed applicant to obtain adoption order in Ukraine. Adoption order would not have been obtained if applicant revealed she was Canadian citizen who had been living in Canada for number of years. Ukrainian court was not provided with fundamental information that was relevant to its jurisdiction to grant order. Officer was not biased, did not deny applicant procedural fairness and did not err in assessment of evidence. There were sufficient grounds for officer to disregard Ukrainian court order.
Cheshenchuk v. Canada (Minister of Citizenship and Immigration) (Jan. 13, 2014, F.C., James Russell J., File No. T-2217-12) 236 A.C.W.S. (3d) 825.

Employment

EMPLOYMENT RELATIONSHIP

Refusing to admit evidence was breach of natural justice

Respondent was helicopter maintenance engineer and he maintained helicopters owned by applicant. Respondent took position that he was self-employed when it suited him from compensation, income tax or spousal support perspective. When relationship with applicant ended it suited respondent to say that he was employee of applicant and was entitled to damages for unjust dismissal pursuant to Canada Labour Code. Adjudicator determined that respondent was employee of applicant and he was awarded damages for unjust dismissal. Applicant applied for judicial review of adjudicator’s decision. Application granted. Adjudicator erred in law in refusing to admit two affidavits filed by applicant into evidence. Affidavits were relevant evidence that went directly to issues raised by applicant. They spoke to parties’ views of relationship and they spoke directly to how respondent viewed relationship with applicant prior to unjust dismissal complaint. Affidavits were clearly relevant to issue of whether respondent ought to be estopped from asserting that he was employee, as against applicant. Refusing to admit evidence was breach of natural justice. Once contested affidavits were admitted, adjudicator’s ruling was unreasonable. Other than respondent describing himself as contract employee, there was no evidence that he ever considered himself to be employee. Respondent led applicant to understand that relationship was not that of employer-employee, but was that of independent contractor. Applicant changed its position by not making deductions it was legally required to make if relationship was one of employment. It was unreasonable for adjudicator to have found that respondent maintained he was employee. Adjudicator erred in rejecting applicant’s defence that respondent was estopped from claiming he was employee of applicant. Only reasonable conclusion based on proper analysis of evidence that ought to have been admitted was that respondent always maintained he was self-employed as independent contractor.
Rennie and VIH Helicopters Ltd., Re (Jan. 8, 2014, F.C., Russel W. Zinn J., File No. T-675-13) 236 A.C.W.S. (3d) 637.

Aboriginal Peoples

APPLICATION OF PROVINCIAL LAW

Nothing federal about work of negotiations office

Respondent was employed as member of First Nation’s negotiations office until his employment was terminated. Respondent filed complaint under Canada Labour Code. Minister of Labour appointed adjudicator and referee pursuant to Code to determine claims made by respondent for unjust dismissal and recovery for unpaid overtime and vacation pay. Adjudicator determined he had jurisdiction over claims because employment relationship between parties was federally and not provincially regulated. First Nation applied for judicial review of adjudicator’s decision. Application granted. Adjudicator’s finding that First Nation was employer was reasonable. Whether respondent’s employment fell under federal or provincial jurisdiction rested on whether operations of negotiations office was properly characterized as federal work, undertaking or business within meaning of s. 2 of Code. Operations and habitual activities of negotiations office specifically had to be considered. Adjudicator erred in characterization of normal and habitual activities of negotiations office. Central purpose of negotiations office was negotiation of sophisticated commercial arrangements with other parties and adjudicator erred in focusing on fact that beneficiaries of activities of negotiations office were members of Indian band. Habitual activities of negotiations office were to negotiate with provincial Crown corporation with respect to development of new hydro-electric projects situated in province. There was nothing federal about work of negotiations office. Fact employer was Indian Band was not relevant to functional test. Negotiations of Indian rights and status did not form exclusive or principal part of activities of negotiations office. Labour relations was within provincial jurisdiction.
Fox Lake Cree Nation v. Anderson (Dec. 20, 2013, F.C., Russel W. Zinn J., File No. T-2141-12) 236 A.C.W.S. (3d) 739.

Immigration

EXCLUSION AND EXPULSION

Fair reading of report left people feeling applicant was ticking time bomb

Applicant had been permanent resident since 1991, after being found refugee from Ethiopia. Applicant was sentenced to six and one-half years’ imprisonment after being convicted of incest on older daughter and assault on younger daughter and was ordered deported upon release. In danger opinion, delegate noted crimes were serious, with incest on older daughter for seven years and multiple assaults including blows to head on younger daughter. Applicant denied incest and assaults and insisted he was disciplining children. Applicant expressed no remorse and refused treatment. Psychologist opined applicant was low to moderate risk to re-offend and diagnosed pedophilia. Delegate concluded applicant was danger to public without treatment, and continued denial and lack of remorse prevented his rehabilitation. Application by judicial review of danger opinion. Application dismissed. Delegate did not ignore fact applicant had not re-offended for twelve years and fact he did not place as much emphasis on this factor as applicant would have liked did not render decision unreasonable. Delegate, not psychologist, had burden of assessing risk and was entitled to deference for decision that was reasonable as a whole. Fair reading of psychologist’s report would have left many reasonable people with feeling applicant was a ticking time bomb.
Yalemtesfa v. Canada (Minister of Citizenship and Immigration) (Dec. 13, 2013, F.C., Michael L. Phelan J., File No. IMM-1201-13) 236 A.C.W.S. (3d) 449.

Citizenship

APPEAL

No way to tell from record why DNA requirement imposed, and upon what authority

Delegate of Minister of Citizenship and Immigration (“officer”), had refused application of foreign national citizen of Philippines (“mother”) and her husband, who was Canadian citizen (“father”) on behalf of their minor child, for Certificate of Citizenship under s. 12(1) of Citizenship Act (Can.). Citizenship and Immigration Canada found that there was insufficient proof that Canadian citizen was child’s biological father, and therefore refused application for Citizenship Certificate. Father and mother were advised that DNA evidence would be required to establish that Canadian citizen was child’s father. Certificate of Live Birth for child had been provided, however DNA evidence was not provided and application for Citizenship Certificate was denied. Only reason given for DNA demand and refusal to accept birth certificate was that child was born at home with mid-wife and not in hospital. Application allowed; decision quashed and matter returned for reconsideration by different officer. Reason why DNA requirement was needed for child born at home was not articulated. There was no evidence that reason for this requirement was ever explained to mother and father or that it was publically available in policy manual or elsewhere. There was no indication that mother and father were advised that s. 3(1)(b) could be satisfied in any other way than through DNA testing. There was no way to tell from record why DNA requirement had been imposed, and upon what authority. Without this information, decision lacked intelligibility and transparency to render it reasonable. Because rationale and legal justification for DNA requirement were never explained to mother and father, they had no opportunity to argue or explain why it should not be applied to them, or opportunity to offer alternative evidence that could suffice to satisfy s. 3(1)(b) of Act. This was procedurally unfair.
Watzke v. Canada (Minister of Citizenship and Immigration) (Jan. 8, 2014, F.C., James Russell J., File No. T-229-12) 236 A.C.W.S. (3d) 301.

Agency

PARALEGALS

Claimant waived his right to be heard since consultant was acting as his agent

Refugee claimant was young male Tamil citizen of northern Sri Lanka who alleged fear of persecution by Sri Lankan Army and paramilitary group Eelam People’s Democratic Party. Claimant left Sri Lanka and came to United States where he was arrested and detained, and later released on bond. Claimant subsequently came to Canada where he claimed refugee status. At end of hearing on October 29, 2012, Refugee Protection Division (“RPD”) granted claimant one month to obtain documents from American Immigration authorities. Hearing was adjourned before claimant’s counsel, immigration consultant, could make his final submissions. On December 7, 2012, claimant’s immigration consultant submitted to RPD documents he obtained from claimant’s counsel in United States, which did not include documents requested by RPD, along with letter stating that his client did not have means to obtain any other documents, but was willing to sign release to Canadian Borders Services Agency, so that it might obtain information directly from United States government. RPD rendered its decision on February 21, 2013, without second hearing, finding that claimant lacked credibility. Claimant applied for judicial review, contending that he had been denied procedural fairness as second hearing did not take place and his immigration consultant was incompetent. Application dismissed. Claimant had provided no evidence as to instructions given to his immigration consultant on basis of which court could determine whether consultant’s conduct constituted incompetence. Nor had claimant established that he had suffered prejudice as result of consultant’s conduct or that miscarriage of justice had occurred. Alleged incompetence of claimant’s immigration consultant did not amount to breach of procedural fairness. After adjournment of first hearing, there had been consistent exchange between RPD and consultant and at no time after cancellation of second hearing did consultant object to cancellation because he wanted to make submissions. Claimant waived his right to be heard and to present submissions through his immigration consultant’s actions, since consultant was acting as agent of claimant. Accordingly, there had been no breach of procedural fairness which would warrant court’s intervention.
Pathinathar v. Canada (Minister of Citizenship and Immigration) (Dec. 9, 2013, F.C., Simon Noël J., File No. IMM-2412-13) 235 A.C.W.S. (3d) 1040.
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