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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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Administrative Law


Evidence not properly considered in its totality and decision unreasonable

Sponsor was Canadian citizen. Sponsor’s spouse was citizen of India. Marriage was arranged by families and took place in December 2009, two days after parties met. Spouse applied for permanent residence however application was rejected by officer on basis that marriage was not genuine and was entered into primarily for purpose of acquiring permanent residence in Canada contrary to s. 4(1) of Immigration and Refugee Protection Regulations (Can.). Appeal was rejected by Immigration Appeal Division (IAD) in June 2011. Sponsor gave birth to child in June 2012, which was confirmed by genetic testing to be that of spouse, sponsor and spouse were in daily contact by Skype, sponsor had travelled to India for two trips of several months duration and was planning to travel for five month trip to India. Spouse applied for permanent residence again in November 2011, and application was again refused on ground first decision was final and conclusive and application was res judicata.  Despite via voce evidence of spouses on second appeal. IAD dismissed second appeal on basis that matter was res judicata or, in alternative, that marriage was entered into for primary purpose of acquiring status under Immigration and Refugee Protection Act. Sponsor applied for judicial review. Application granted. In adopting reasoning of previous decision, IAD did not address viva voce evidence of parties at second appeal.  Nor did IAD address new, fresh evidence adduced by sponsor beyond stating it had considered all evidence before it. No analysis was provided although  there was clear evidence that might alter outcome if properly considered in its totality i.e. evidence of continuing relationship, two to three trips to India of several months in duration, and birth of  child. While IAD had discretion to decide evidence put forward did not amount to decisive evidence, type of evidence adduced in this matter has been held to be fresh, decisive evidence in previous judicial reviews of spousal-sponsorship applications. IAD was obliged to address why it did not constitute such evidence in present case beyond simply adopting reasons of previous panel. Failure to do so indicated that evidence was not properly considered in its totality and decision of IAD was unreasonable.
Sandhu v. Canada (Minister of Citizenship and Immigration) (Sep. 2, 2014, F.C., Luc Martineau J., File No. IMM-1309-14) 245 A.C.W.S. (3d) 188.

Aboriginal Peoples

Appeal tribunal usurped its role to observe and oversee election
In 2010 applicant was candidate for chief and he lost election by two votes. Appeal tribunal dismissed applicant’s appeal but judge allowed application for judicial review. Second election was to be held in March 2013 and applicant was again candidate for chief. On date of election chief electoral officer posted notice that indicated that applicant owed Band money and was disqualified from being candidate in election. All votes cast for applicant were placed in envelope and marked as disqualified. Applicants appealed. Appeal tribunal upheld decision to disqualify applicant and dismissed appeal. Applicants applied for judicial review of appeal tribunal’s decision. Application granted. Appeal tribunal usurped its role according to Sturgeon Lake First Nations Election Act, 2009 and it usurped its role according to custom to observe and oversee election. Appeal tribunal actively participated in decision to disqualify F as candidate in election. Appeal tribunal did not merely observe and oversee election. Informed person could reach no other conclusion than that there was reasonable apprehension of bias. Appeal tribunal violated procedural fairness and decision was quashed on that basis. Matter was remitted to appeal tribunal for re-determination.
Felix v. Sturgeon Lake First Nation (Sep. 23, 2014, F.C., Catherine M. Kane J., File No. T-927-13) 244 A.C.W.S. (3d) 754.



Conditions of release required and proportional to danger identified

Foreign national was first detained under security certificate in 2000. Foreign national was released under strict conditions after nearly seven years. Foreign national was named in second security certificate in 2008. In January 2013, some of foreign national’s conditions of release were repealed and others were softened considerably. No changes were made when matter was last considered in December 2013. Second security certificate was found to be reasonable around that time. Foreign national subsequently agreed to provide various passwords to authorities. Foreign national brought application for order repealing most release conditions. Application dismissed. Conditions of release were required and proportional to danger identified. Foreign national’s record regarding his most recent conditions of release had not been exemplary. Foreign national had breached his conditions of release by, inter alia, not giving proper notice of acquisition and use of telephone and fax services. Foreign national’s recent attitude, action, and behaviour were also indicative of unwillingness to collaborate and co-operate with supervisors. Foreign national’s conduct could give impression that he had something to hide. Fact that underlying proceedings were long and complex did not in itself support less strict conditions of release. Report from psychiatrist was given little weight due to inaccuracies. Foreign national’s proposed questions for certification were not certifiable.
Mahjoub, Re (Jul. 18, 2014, F.C., Simon Noel J., File No. DES-7-08) 244 A.C.W.S. (3d) 407.

Environmental Law


Failure to apply definition of hazardous recyclable material led to erroneous conclusion

Canada was party to international agreements that required controls on export and import and conveyance of hazardous products that might harm environment. Canada complied with agreements through Canadian Environmental Protection Act, 1999, and Exports and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Can.) (Export and Import Regulations). Respondent operated waste petroleum management facilities. VES supplied oil to respondent. Respondent delivered three to four million litres per year to Maine implicating Export and Import Regulations. Oil from VES was used oil from garages that performed oil changes and oil was not transformed prior to shipping to respondent. Product was not subject to any refining process apart from filtration, gravitational settlement and water removal. Respondent did not have permit to export used oil to United States. Notice of intent to issue environmental protection compliance order was issued to respondent. Order directed respondent to cease all export of controlled substance into United States until export permit was issued. Chief Review Officer set aside environmental compliance order finding product was recycled and reprocessed fuel and not subject to regulation. Appellant appealed. Appeal allowed. It was unclear what definition of hazardous recyclable material Chief Review Office applied in decision. Fact that intended use of substance was to be in one of forms of recycling contemplated by Export and Import Regulations did not mean it was recycled when it left respondent’s facility as Chief Review Officer concluded. Chief Review Officer’s failure to apply statutory definition of hazardous recyclable material led him to conclude erroneously that Export and Import Regulations did not apply to product exported by respondent. Had Chief Review Officer correctly applied statutory and regulatory definition, he would have found that product was hazardous recyclable material and upheld order.
Atlantic Industrial Services v. R. (Aug. 5, 2014, F.C., Richard G. Mosley J., File No. T-1307-13) 244 A.C.W.S. (3d) 106.

Constitutional Law


Decision to eliminate benefit previously provided was ‘cruel and unusual’

Interim Federal Health Program (IFHP) provided health insurance coverage to refugee claimants and others seeking Canada’s protection. Governor in Council passed Orders in Council (OICs), which significantly modified IFHP. Level of coverage was reduced for many and eliminated for others. Three public interest organizations and two individuals brought application to declare OICs invalid. Application granted. OICs violated s. 12 of Canadian Charter of Rights and Freedoms and not saved by s. 1. GIC had intentionally targeted group of poor, vulnerable and disadvantaged individuals, to encourage them to leave country more quickly once refugee claims rejected, and to deter “bogus” claimants from seeking protection of Canada. In unusual circumstances of case, decision to limit or eliminate benefit previously provided to discrete minority of individuals coming within administrative control of government subjected them to “treatment” for purposes of s. 12. Treatment was “cruel and unusual”, particularly as it affected children who had been brought to Canada by their parents. Cuts to health insurance affected by OICs potentially jeopardized health, and indeed very lives, of innocent and vulnerable children in manner that shocked the conscience and outraged our standards of decency. Declaration of invalidity suspended for four months.
Canadian Doctors for Refugee Care v. Canada (Attorney General) (Jul. 4, 2014, F.C., Anne L. Mactavish J., File No. T-356-13) 244 A.C.W.S. (3d) 73.



Board’s credibility analysis as a whole was unreasonable

Claimant was citizen of Georgia who claimed protection based on physical and verbal abuse by husband. Board did not believe claimant’s allegation that claimant’s husband had tied her to chair and burnt her back with iron. Board assigned claimant’s medical reports indicating burn scars on her back low probative value on basis that board did not believe facts on which reports were based. Claimant had confronted husband about affair he was having and board concluded from this that if she had courage to confront husband and that husband was under influence of drink when abuse allegedly took place, it was implausible that claimant could have been physically abused by husband. Board concluded claimant lacked credibility and denied claim. Claimant applied for judicial review. Application granted. Board’s primary negative credibility finding was that it was implausible that claimant could not or would not have overpowered her husband after he was drinking and began to physically abuse her. This finding reflected disregard and misunderstanding of nature of domestic abuse. To suggest that domestic abuse is perpetrated against victims whose personal qualities allow it to occur ignores fact that abuse is not consensual and takes place in range of social and interpersonal circumstances. Conclusion was not justifiable or intelligible. There was no evidentiary basis to conclude that claimant could have physically repelled attacks of her husband, given typical size and strength disparity between man and woman. Likewise, given persistent abuse claimant had suffered, there was no basis to assume that she would have psychological strength to defend herself, even if it were physically possible. Board’s credibility analysis as whole was unreasonable.
Danelia v. Canada (Minister of Citizenship and Immigration) (Jul. 16, 2014, F.C., Michael D. Manson J., File No. IMM-3324-13) 242 A.C.W.S. (3d) 893.

Aboriginal Peoples


Permanent residency requirement was not met by Chief

Current Chief of Cowessess First Nation was evicted from house on Reserve because of non-payment of rent. Current Chief lived in Regina and no longer had home on Reserve. Current Chief maintained farmland that he worked on Reserve and kept equipment on land. Motion was passed to transfer unit to current Chief. Tenant refused to vacate unit and current Chief was unable to take occupancy. Current Chief refused to call meeting to discuss issues with respect to his residency and Cowessess First Nation #73 Custom Election Act. Current Chief was not allocated house on Reserve. Band Council refused to order by-election to fill position of Chief. There was dispute about whether position of Chief was vacant by operation of law, which concerned current Chief’s compliance with residency requirements set out in Act. Applicants sought judicial review. Application granted. Position was deemed vacant. Respondents did not adduce sufficient evidence to show traditional understanding of permanent residence. Relevant provisions of Act required physical presence of Chief on Reserve. Record showed current Chief did not take up residence on Reserve. Permanent residency requirement was not met. Current Chief did not take up permanent residence on Reserve within three-month time period required by Act, which triggered article of Act that mandated that when person elected as Chief did not take up permanent residence as required by Act, position of Chief was deemed vacant.
Ferguson v. Lavallee (Jun. 13, 2014, F.C., E. Heneghan J., File No. T-1412-13) 242 A.C.W.S. (3d) 756.
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