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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

EXCLUSION AND EXPULSION

Officer almost certainly wrong when he described situation as unchanged

Applicant’s underlying judicial review application sought deferral of removal in face of new risks facing homosexuals and bisexuals in Nigeria. Applicant claimed he was bisexual and feared his sexual orientation would put him at serious risk of death, extreme sanction and inhumane treatment in Nigeria. Motion by applicant for stay of removal pending outcome of judicial review application. Motion granted. Officer was given country condition reports, which demonstrated situation in Nigeria had worsened. In applicant’s refugee application, board did not accept applicant had personalized risk, but did not make any finding on his sexual orientation or generalized risk. As such, officer had no basis to conclude risk considered by board was same generalized risk presented in support of deferral request. While officer did not have authority to look behind board decision, he had duty to consider generalized risk faced by applicant as purported bisexual returning to Nigeria. Nigerian government had begun campaign against homosexuals and bisexuals, with round ups and inhumane punishment, which had been condemned by Canada and other countries. Officer was almost certainly wrong when he described situation in Nigeria as unchanged and found that board had appropriately assessed generalized risk. Irreparable harm was established and Canada clearly should not be deporting homosexuals and bisexuals to Nigeria in current conditions. Balance of convenience favoured applicant’s interest over Minister’s desire to deport him.
Abioye v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 10, 2014, F.C., R.L. Barnes J., File No. IMM-1828-14) 239 A.C.W.S. (3d) 718.

Immigration

REFUGEE STATUS

Analysis and reasons so inadequate that they could not be considered reasonable

Refugee claimants were citizens of Croatia of Serbian ethnicity who alleged fear of persecution by reason of their ethnicity. Claimants alleged that they had difficulty in obtaining work, suffered discrimination in workplace, and were verbally harassed. Board found that incessant and repeated acts of discrimination suffered by all members of family by reason of their nationality, particularly their son being beaten and discrimination suffered by female claimant in finding employment, amounted to persecution. Board found that state protection would not be forthcoming as claimants had made several attempts to obtain protection from police authorities and although police responded on every occasion, they consistently failed to provide adequate level of protection to family. Board found that documentary evidence confirmed that discrimination against ethnic Serbs existed throughout Croatia, and that claimants would not likely be able to find gainful employment in all of Croatia. Board concluded that claimants were Convention Refugees and Minister applied for judicial review. Application granted. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable. Board’s finding that incessant and repeated number of acts of discrimination suffered by all members of family amounted to persecution did not accord with evidence before it. Board’s finding that police consistently failed to provide adequate level of protection was not grounded in evidence as board recognized that police responded on every occasion that they were called by claimants and there was no evidence that police failed to follow through on any investigations or failed to provide any services. Board’s treatment of existence of internal flight alternative was deficient and not grounded in evidence before it. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable.
Canada (Minister of Citizenship and Immigration) v. Viljanac (Mar. 21, 2014, F.C., Daniele Tremblay-Lamer J., File No. IMM-3807-13) 239 A.C.W.S. (3d) 458.

Employment

PUBLIC SERVICE

Decision based on employer’s intention rather than independent interpretation of agreement

Employer extended appointment of person who was acting as interim team leader, while appointment process was ongoing. Employee filed complaint with Public Service Staffing Tribunal alleging interim team leader was getting unfair advantage of accumulating experience. Complaint was settled by employer agreeing to fill team leader positions from certain pools of candidates. Employer subsequently filled one temporary team leader position with someone from Canada Revenue Agency and filled two others internally. Employee filed grievance alleging employer breached settlement agreement. Employer dismissed grievance on basis that employee misunderstood employer’s intention and that corrective action could not be taken. Employee brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness since interpretation of settlement agreement was taking place within staffing context. Decision was unreasonable since decision was based on employer’s intention rather than independent interpretation of settlement agreement. Additionally, reasons for decision were inadequate with respect to decision-maker’s jurisdiction to consider grievance. Court was not in position to determine whether this part of decision was within range of acceptable outcomes. Finally, decision did not provide any analysis or rationale to support conclusion that corrective action could not be implemented.
Taticek v. Canada (Border Services Agency) (Mar. 21, 2014, F.C., Cecily Y. Strickland J., File No. T-1934-12) 239 A.C.W.S. (3d) 382.

Administrative Law

JUDICIAL REVIEW

Evaluating education and qualification of aspiring pharmacists was provincial matter

All provinces had licensing boards to determine if someone could practice pharmacy within the province, and all provinces except Quebec required applicants to pass the Pharmacy Examining Board of Canada (PEBC) qualifying examination. Under Regulations to Pharmacy Act, 1991 (Ont.), applicants had three tries to pass the exam and could request a fourth attempt upon completion of remedial assistance. After four unsuccessful attempts, Regulations required an applicant to obtain a new Bachelor’s Degree and try again. Applicant failed test three times, did remedial work, and then made fourth attempt but failed again. Applicant requested fifth attempt, but PEBC refused. Application for judicial review of PEBC’s decision refusing to grant applicant fifth attempt at exam. Application dismissed. Evaluating education and qualification of aspiring pharmacists was provincial matter, and each province had Regulations. Section 12(1) of An Act to Incorporate the Pharmacy Examining Board of Canada, only amounted to limited authority to allow judicial review by Federal Court of certain removals from PEBC’s Pharmacy Register due to quasi-criminal allegations. This was not sufficient body of federal law to nourish grant of jurisdiction. Federal court lacked jurisdiction to hear application.
Aljawhiri v. Canada (Pharmacy Examining Board) (Mar. 31, 2014, F.C., Glennys L. McVeigh J., File No. T-718-13) 239 A.C.W.S. (3d) 245.

Aboriginal Peoples

REAL PROPERTY

Band council to reconsider decision including giving farmer opportunity to be heard

First Nation allowed non-Aboriginal farmers to farm on reserve lands under permits. Farmer had been allowed to farm on reserve since 1981. Farmer’s latest permits would expire on March 31, 2016. First Nation’s band council alleged various types of impropriety against farmer. Band council notified farmer in December 2013 that he would no longer be allowed to farm on reserve land as of March 31, 2014. Farmer brought application for judicial review. Application granted; matter remitted for reconsideration. Band council was to reconsider decision in accordance with directions that included giving farmer opportunity to be heard. Farmer was entitled to procedural fairness before decision was made to terminate permits before they expired. There was no authority suggesting procedural fairness should not apply to band council’s decision. Decision was of immense importance to farmer’s business. Farmer had legitimate expectations that band council would secure permits he needed until March 31, 2016. Whole history of farmer’s long association with First Nation required band council to provide farmer with adequate notice of case he had to answer before decision was made to terminate relationship with him.
Hengerer v. Blood Indians on the Blood Indian Reserve No. 148 (Mar. 6, 2014, F.C., James Russell J., File No. T-284-14) 239 A.C.W.S. (3d) 6.

Crown

ACTIONS AGAINST CROWN

Precondition to passport revocation that holder be convicted of indictable offence

Applicant and daughter attempted to check-in for flight from Lima to Toronto. Applicant and daughter’s passports had substituted bio-data page that had deficiencies compared to legitimate bio-data page. Passports were seized. Daughter stated that she altered passports one day before flight because she did not want to return to Canada. Respondent decided to revoke applicant’s passport and impose period of refusal of passport services for four years. Respondent determined applicant was aware of damage to passports yet attempted to travel with them away. Applicant sought judicial review. Application granted. It was precondition to passport revocation under s. 10(2)(b) of Canadian Passport Order, that passport holder be convicted of indictable offence. Applicant was never charged or convicted of indictable offence and decision to revoke her passport was made without authority. Revocation was invalid because passport expired by time it was purportedly revoked and Minister could only revoke unexpired passport.
Siska v. Passport Canada (Mar. 28, 2014, F.C., Russel W. Zinn J., File No. T-1180-13) 238 A.C.W.S. (3d) 878.

Administrative Law

FREEDOM OF INFORMATION

Claimed extension of time did not constitute deemed refusal of access

Department of National Defence (DND) had unspecified involvement in contract with company and sale of surplus military assets to Uruguay. Requester filed request under Access to Information Act (Can.), to obtain information from DND relating to these matters. In March 2011, DND informed requester that 30-day period in s. 7 of Act was being extended by 1,110 days pursuant to s. 9 of Act. Information Commissioner of Canada conducted investigation into length of extension and concluded in October 2012 that extension was invalid. DND provided requested records with some redactions in September 2013. Commissioner brought application for declaration that DND was deemed to have refused request by not responding within 30-day period in s. 7 of Act. Application dismissed. Commissioner’s authority to pursue judicial review was limited to refusals to disclose or to provide access to requested record. Court had to respect language of Act and could not redraft or reinterpret provisions to reach its own view of how its purpose could be better served. Claimed extension of time did not constitute deemed refusal of access even though commissioner had found it to be unreasonable. Prior authorities clearly stated there could be no deemed refusal under Act until time period had expired. Parliament’s clear intention was that requesters could complain about claimed extensions and commissioner could investigate, but that was extent of recourse. Since court had no jurisdiction to consider application pursuant to ss. 41 or 42 of Act, court did not need to consider whether extension claimed was reasonable.
Canada (Information Commissioner) v. Canada (Minister of National Defence) (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-92-13) 238 A.C.W.S. (3d) 789.
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