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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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Aboriginal Peoples

Crown relationship

Decision to appoint third party management to ensure delivery of essential social programs was reasonable

Application for judicial review to set aside decision of Minister of Indian Affairs and Northern Development Canada, as carried out by Aboriginal Affairs and Northern Development Canada (AANDC) to place applicant, Thunderchild First Nation (TFN) under third party management following its refusal to sign Aboriginal Recipient Funding Agreement (ARFA) for 2014-2015 fiscal year. TFN chose not to sign ARFA because of previous stated concerns about absence of consultation; fact that agreement was affording wider discretion to Minister; insufficient funding; and requirement that Band Council prepare consolidated audit. Decision had been taken to place TFN under third party management to ensure that AANDC programs and services continued to be delivered to people of TFN. Application dismissed. AANDC made significant efforts to find alternative solution and to come to agreement with TFN for funding its programs and services. While court agreed that TFN did not lack ability to manage its own finances, it was lack of ARFA that was determinative. Given circumstances, decision to appoint third party management to ensure delivery of essential social programs was reasonable and fell within range of possible, acceptable outcomes. TFN chose not to participate in review of process by which AANDC addressed concerns of First Nations of Saskatchewan with respect to ARFA for 2014-2015 fiscal year. TFN could not now rely on fact that it was not consulted in meaningful and serious manner. Minister neither failed to observe principles of natural justice nor his duty to consult and accommodate.
Thunderchild First Nation v. Canada (Minister of Indian Affairs and Northern Development) (Feb. 18, 2015, F.C., George R. Locke J., File No. T-791-14) 250 A.C.W.S. (3d) 181.

Air Law

AIRPORTS

Cancellation of employee’s transportation security clearance upheld on judicial review

Employee worked for employer that operated out of airport. Employee had held transportation security clearance (TSC) since 2001. In 2013, Transport Canada received report from police indicating employee was involved in organized crime group that imported and exported drugs. Report noted lack of sufficient evidence to charge employee, but that he continued to facilitate movement of drugs with assistance of co-workers. Employee was notified his TSC was under review and was provided with information in report and given opportunity to make submissions. Employee denied any involvement in alleged incidents. Director General of Aviation Security cancelled employee’s TSC based on police report and recommendation of TSC Advisory Body. Employee brought application for judicial review. Application dismissed. Employee had not been denied procedural fairness, and Director General’s decision was reasonable. Duty of procedural fairness was at lower end of spectrum and was satisfied in this case. Employee knew allegations against him and had opportunity to make submissions. Decision was based on well-documented and extensive evidence with no suggestion of bias. Director General had wide discretion under s. 4.8 of Aeronautics Act (Can.), with respect to TSC. Decision was based on reasonable belief that employee could unlawfully interfere with civil aviation in accordance with TSC Program Policy. Director General was entitled to rely on police report, which was detailed and based on information from multiple law enforcement sources. Criminal convictions were not benchmark to justify revocation of TSC. Further, conduct at issue did not have to be direct interference with aviation security.
Brown v. Canada (Attorney General) (Nov. 14, 2014, F.C., Catherine M. Kane J., File No. T-1800-13) 250 A.C.W.S. (3d) 10.

Immigration

JUDICIAL REVIEW

Decision refusing adjournment was breach of applicant’s right to natural justice

Applicant came to Canada with his parents when he was 12 years old. Applicant had daughter with common law partner. Applicant was convicted and incarcerated for sexual assault of daughter when she was minor. Admissibility hearing was held while applicant was incarcerated and he was issued removal order. Applicant appealed. Applicant was not represented because he had not been able to obtain lawyer and he asked for adjournment. Board member refused to grant adjournment on basis that applicant had not made reasonable efforts to retain counsel. Applicant applied to reopen appeal but panel dismissed application. Applicant applied for judicial review. Application granted. Failure to consider all factors set out in R. 48(4) of Immigration Appeal Division Rules (Can.), constituted error of procedural fairness. There was no evidence that board member gave any consideration to at least two mandatory factors in Rule 48(4), nature and complexity of matter and previous delays. It was open to board member to grant postponement to fixed date. Panel’s decision to refuse to reopen appeal was unreasonable. Panel failed to consider Rule 48(4) or its jurisprudence and it failed to examine whether board member who refused adjournment had done so. Decision refusing adjournment was breach of applicant’s right to natural justice and fair hearing because board member failed to consider and weigh mandatory factors in Rule 48(4).
S. (V.L.) v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2014, F.C., Russel W. Zinn J., File No. IMM-5114-13) 248 A.C.W.S. (3d) 918.

Aboriginal Peoples

SELF-GOVERNMENT

Council failed to give applicants notice of intended vote

In 1991, subject First Nation decided to become self-governing and established two governing bodies, one made up of elected chief and four councilors and another, respondent council, made up of representative from each family. In May 2014, council passed motion removing applicants, chief and three of four councilors, from office. Applicants obtained injunction and council rescinded motion. Council then sent letters demanding applicants submit budget, with details of salaries and expenditures, for approval, and attend meeting. Applicants submitted lengthy information package. At meeting, even after receiving confirmation that injunction remained in effect, council passed motion and resolution removing applicants from office. Council then issued notice of and proceeded with by-election. Applicants applied for judicial review, seeking order quashing decision to remove them and declaration by-election null and void. Application allowed. Evidence from those who attended meeting indicated that quorum of ten had not been present for removal vote. Fact that resolution signed by more members of council next day irrelevant. Evidence also indicated that council had failed to give applicants any notice of intended vote or specific allegations against them. That constituted breach of principles of natural justice. While s. 14 of First Nation’s Election Act (Can.), provided authority to remove elected chief and councilors, it conferred that authority on all members of First Nation, not just council. Section 15 of Act required council to support chief and councilors in execution of duties, but did not give power to remove them.
Roseau River Anishinabe First Nation v. Roseau River Anishinabe First Nation Custom Council (Dec. 16, 2014, F.C., Sandra J. Simpson J., File No. T-1210-14) 248 A.C.W.S. (3d) 738.

Immigration

INADMISSIBLE AND REMOVABLE CLASSES

Board’s decision was unintelligible

Foreign national was citizen of Philippines who had come to Canada under live-in caregiver program. Foreign national had defaulted on loan from bank in United Arab Emirates which led to criminal conviction in absentia in that country for uttering in bad faith dud cheque. Inadmissibility report was issued against him and Immigration Division of Board ordered him deported. Foreign national made refugee claim. Minister intervened, contending that foreign national should be excluded from protection for serious non-political criminality pursuant to s. 98 of Immigration and Refugee Protection Act (Can.). Board found that foreign national was excluded by s. 98 of Act and Article 1F(b) of Convention. Board concluded that offence was sufficiently similar to offence of fraud in that it could be prosecuted in Canada under paragraph 380(1)(a) of Criminal Code (Can.), and maximum penalty for that was 14 years, so Board held that it was serious crime. Board found that sentence of 18 months’ imprisonment in UAE was within acceptable international standards. Board accepted foreign national’s submission that this could have been civil matter in Canada. As there were serious reasons to consider that foreign national had committed serious non-political crime, Board concluded foreign national was excluded from protection by s. 98 of Act. Foreign national applied for judicial review. Application allowed; matter returned to another panel of Board for redetermination. Board’s decision was unintelligible. Having found that foreign national could not have been convicted for his conduct in Canada, Board could not simultaneously presume that offence was serious because he could have been convicted, yet that was what Board did. Entire decision was thereby tainted since Board had already applied presumption of seriousness when assessing other factors. By doing so, it had put burden on foreign national to prove that offence was not serious. Board found  that penalty of 18 months’ incarceration was not in violation of accepted international standards, however, there was no evidence that defaulting on loan was crime in any other countries, let alone what penalties might be imposed for it. Since burden of proof should have still been on Minister if s. 380(1)(a) of Code was not equivalent offence, this finding was made without any evidence to support it. Further, while length of sentence actually imposed was not always pertinent it was strange that Board only assessed whether sentence was severe by international norms and not whether 18 months was long enough sentence to indicate that foreign national’s actual conduct was serious. For all those reasons, Board’s decision was unreasonable.
Notario v. Canada (Minister of Citizenship and Immigration) (Dec. 2, 2014, F.C., John A. O’Keefe J., File No. IMM-2229-13) 247 A.C.W.S. (3d) 916.

Aboriginal Peoples

SELF-GOVERNMENT

Board not properly constituted and did not have jurisdiction to accept and decide petition

Previous Appeal Board consisted of three members whose term had not expired. One member of Previous Appeal Board died and one resigned because of health issues. Mayor was elected. Complaint was received with respect to mayor and complainant’s wife engaging in texting of sexually explicit nature. Band council resolution (BCR) was passed to present petition to remove mayor from office. Third member of Previous Appeal Board was mother of complainant’s wife and two other members could not be reached. Complaints and Appeal Board of Band Council (New Appeal Board) was appointed to hear petition. Applicants asserted petition and BCR did not conform to requirements. New meeting was held and present BCR was passed authorizing filing of new BCR with same allegations and goal of removing mayor. New Appeal Board conducted hearing but did not allow mayor to see second BCR. There was dispute as to whether mayor was permitted in hearing room for first hour and half. When mayor was present he was not allowed to see evidence presented against him. New Appeal Board declared elected mayor ineligible to hold office of Mayor and appointed second in mayoral elections to serve as mayor. Applicants asserted New Appeal Board was not properly constituted. Applicants sought judicial review. Application granted. New appeal Board was not properly constituted and did not have jurisdiction to accept and decide petition. Process followed in establishing New Appeal Board was improper and unreasonable. It was incumbent on respondents to make every effort to contact at least remaining two Board members to participate in meetings before taking any action to remove or replace them. Respondents did not do so and were unreasonable in removing and replacing two members of Previous Appeal Board. Not giving mother of wife of complainant opportunity to address her alleged conflict of interest was unfair and unreasonable. Apparent urgency in dealing with perceived improper relationship between mayor and complainant’s wife did not excuse summary dissolution of Previous Appeals Board, subsequent meeting of New Appeal Board to discuss respondents’ petition and evidence needed for petition to succeed. Actions were taken in absence of mayor and without his knowledge. Process was not totally independent or free from bias. Process taken for removal of mayor was fatally flawed.
Tait v. Johnson (Nov. 20, 2014, F.C., Michael D. Manson J., File No. T-1821-14) 247 A.C.W.S. (3d) 738.

Administrative Law

JUDICIAL REVIEW

Incompetent representation led to violation of procedural fairness

Foreign national was 73-year-old citizen of El Salvador who had three children, two of whom were Canadian citizens who fled El Salvador in 1980s, and third who fled country in 2010 and was granted refugee protection in Canada in 2012. Foreign national came to Canada in 2011, on visitor’s visa. In 2012, foreign national filed unsuccessful Humanitarian and Compassionate (H&C) application under s. 25(1) of Immigration and Refugee Protection Act (Can.), as means of obtaining permanent residence in Canada. Application was prepared using services of immigration consultant who was intervener in judicial review application. Foreign national alleged that incompetence of immigration consultant in omitting crucial evidence regarding four key areas of her case led to failure of meritorious H&C application. Application granted; matter sent back to CIC for redetermination. Court’s role in judicial review context not to take place of professional regulator. Court must determine whether omissions resulted in prejudice to foreign national without which, on basis of reasonable probability, outcome would have been different. Tripartite test satisfied. Incompetent representation led to violation of procedural fairness. It was beyond question that four missing items, had they been jointly included in submissions, could well have led to different H&C result.
Guadron v. Canada (Minister of Citizenship and Immigration) (Nov. 19, 2014, F.C., Alan Diner J., File No. IMM-1484-13) 247 A.C.W.S. (3d) 648.
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