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Administrative Law

NATURAL JUSTICE

Minimal duty of procedural fairness required applicant to know case to meet

Applicant was offered position of employment with Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) that was conditional on her obtaining secret security clearance before commencing position and top secret security clearance after commencing employment. Applicant obtained secret security clearance and began employment. FINTRAC refused to issue top secret security clearance to applicant and revoked her secret security clearance, her reliability status and her appointment to position with FINTRAC. Applicant was not given notice of concerns leading to denial of security status and was not provided opportunity to address concerns. Three letters were sent to applicant advising her of redress mechanisms. Applicant was provided with letters from Director of FINTRAC and redacted report from Canadian Security Intelligence Service. Applicant sought judicial review. Application allowed. Decisions to deny top secret status and to revoke secret and reliability status were quashed and sent back to director for redetermination. Decisions denying and revoking security status were administrative decisions. Applicant was owed minimal duty of procedural fairness. Director did not meet duty of fairness. Minimal duty of procedural fairness required applicant to know case to meet and to be given opportunity to respond before final decision was made. Applicant should have known nature of security concerns, but she was not provided with any opportunity to respond. Decision to revoke applicant’s appointment as employee of FINTRAC was governed by contract law and no duty of procedural fairness applied to such decision.
Koulatchenko v. Financial Transactions and Reports Analysis Centre of Canada (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-2252-12) 238 A.C.W.S. (3d) 28

Courts

ABUSE OF PROCESS

Allegations against Federal Court Registry could not form basis for cause of action

On Sept. 20, 2012, plaintiff initiated an application for judicial review of Canadian Human Rights Commission’s decision not to hear his complaint. Plaintiff attempted to file evidence with unsworn affidavits. As Mennonite, he refused to swear his affidavit on Bible that was provided by court’s registry in Winnipeg because it was not “undefiled” Bible. Plaintiff was ordered to either obtain access to “undefiled” Bible and swear on it, or to make solemn affirmation to affirm his affidavit. On April 30, 2013, plaintiff’s action was dismissed for delay. Plaintiff said he did not receive copy of notice of status review. On May 8, 2013, court issued directions directing plaintiff to either bring motion to set aside April 30, 2013 order or appeal order to Federal Court of Appeal. Plaintiff did neither and application for judicial review was dismissed. On May 16, 2013, plaintiff filed statement of claim commencing action against Crown seeking order declaring Federal Court Registry in Winnipeg in contempt of court, order directing court to hear his application, and interim order providing means of affirming or swearing his affidavit evidence that did not offend his conscience. Defendant filed motion to strike out plaintiff’s statement of claim. Prothonotary struck out plaintiff’s statement of claim without leave to amend. Plaintiff appealed. Appeal dismissed. Prothonotary did not err by finding that statement of claim did not disclose reasonable cause of action. Allegations against Federal Court Registry could not form basis for cause of action. Rule 386 of Federal Court Rules (Can.), could not be used to transfer matter to another jurisdiction. Claims were identical to those made in application that was dismissed for delay. Plaintiff’s attempt to re-litigate same issues was abuse of process.
Klippenstein v. R. (Feb. 25, 2014, F.C., Richard Boivin J., File No. T-874-13) 238 A.C.W.S. (3d) 90.

Aboriginal Peoples

SELF-GOVERNMENT

Power to remove by reason of petition was based on enumerated grounds

Election Appeal Committee (“EAC”) of respondent First Nation decided to remove applicant from her position as chief pursuant to their election regulations. Problems arose following applicant’s election as chief on April 12, 2012. Applicant attempted to control assignment of temporary jobs and there were concerns that she was awarding jobs to supporters and family members rather than awarding them on competitive basis. Applicant then sought to appoint new EAC that was more favourable to her positions. EAC advised applicant that such move was contrary to regulations. It obtained sufficient signatures on petition from members of First Nation to convene hearing and have applicant removed as chief. Despite applicant’s refusal to recognize EAC’s authority to remove her from position of chief and her efforts to occupy Band Office, new chief was acclaimed following nomination process in which applicant was not nominated as candidate for position. Applicant sought judicial review to overturn actions of EAC. Application dismissed. EAC’s interpretation and application of election regulations must be upheld. Power to remove by reason of petition was based on enumerated grounds, determination of validity of ground, and if valid, EAC could remove chief or councillor and by-election process was initiated. Process for determining validity was matter of discretion. EAC did not breach duty of procedural fairness. Applicant chose to ignore petition and opportunities to speak to EAC. Applicant availed herself of such procedural rights as she desired.
Bighetty v. Barren Lands First Nation (Feb. 21, 2014, F.C., Michael L. Phelan J., File No. T-770-13) 238 A.C.W.S. (3d) 1.

Immigration

REFUGEE STATUS

Board erred in credibility findings

Applicant was citizen of Pakistan who claimed refugee protection on basis she refused to go through with arranged marriage and moved to United States to escape harassment, but continued to be harassed by fiance’s relatives there. Board found determinative issue was credibility and was not convinced fiancé actually existed. Application for judicial review of decision dismissing refugee claim. Application granted. By insisting applicant produce documentary evidence to support testimony in absence of any finding her evidence was contradictory, inconsistent or implausible, board breached principle claimants’ evidence was presumed to be true unless there was valid reason to doubt it. Board erred in rejecting affidavits submitted by applicant merely because they came from her family and did not name her fiance, even though they fully supported applicant’s testimony. Thus, board erred in credibility findings.
Durrani v. Canada (Minister of Citizenship and Immigration) (Feb. 21, 2014, F.C., Russel W. Zinn J., File No. IMM-1263-13) 237 A.C.W.S. (3d) 1002.

Customs and Excise

DUTY

Respondent not entitled to reassess applicant under second same condition ruling

Applicant imported futon covers from China, which came with three closed sides and zipper. In Canada, applicant inserted mattress into cover, closed zipper and punched plastic jiffies through (tufting) and then exported packaged futon mattresses and frames to United States. Applicant paid customs duty on cover and requested same condition ruling. Respondent found futon covers met “same condition status” under s. 303(6) North American Free Trade Agreement as re-packaging did not materially alter goods. As such, respondent found s. 113 of Customs Tariff (Can.), applied and applicant was entitled to full duty relief. Respondent partially paid drawbacks to applicant, but then initiated audit and found tufting did not qualify for same condition treatment because it changed goods from futon cover to completed mattress. In impugned decisions, respondent demanded return of drawback payments. Application for judicial review of decisions demanding return of drawback payments. Application granted. Section 114 of Tariff only applied to payments mistakenly made, whereas applicant was eligible at time of payment. Respondent entitled to review decision under s. 90. However, it was principle of statutory interpretation that, absent clear wording granting respondent power to retroactively vary certificate granting relief that was validly issued, respondent was not entitled to reassess applicant under second same condition ruling. Indeed, Tariff explicitly provided possibility of retroactive orders in other places. First ruling was not product of misrepresentation or error, rather respondent simply decided on different interpretation. Thus, decisions were unreasonable and incorrect.
Dorel Industries Inc. v. Canada (Border Services Agency) (Feb. 24, 2014, F.C., Yves de Montigny J., File No. T-1024-12) 237 A.C.W.S. (3d) 939.

Immigration

PERSON IN NEED OF PROTECTION

Specialized knowledge had no bearing on board’s credibility findings

Refugee claimant was citizen of Albania who claimed protection based on existence of blood feud between his family and another family. Claimant submitted evidence from individual who had been discredited as fraud who provided false blood feud attestation letters in exchange for money. Board informed claimant that letters would be scrutinized in light of recent Response to Information Request (RIR) and board’s specialized knowledge. Board identified several omissions, inconsistencies and implausibilities, which led it to conclude that claimant was not credible and did not have subjective fear of persecution. Claimant applied for judicial review, contending that board made unreasonable credibility findings, and relied upon specialized knowledge during hearing without disclosing what specialized knowledge was, in contravention of Rule 22 of Refugee Protection Division Rules (Can.), thereby breaching its duty of procedural fairness. Application dismissed. Specialized knowledge of board was only based on RIR. Even if board erred in not clearly indicating its specialized knowledge as required by Rule 22, this was not sufficient basis to set aside decision as there was no reason to conclude that specialized knowledge had any bearing on board’s credibility
findings, which were clearly identified and reasonable.
Toma v. Canada (Minister of Citizenship and Immigration) (Feb. 3, 2014, F.C., Catherine M. Kane J., File No. IMM-1799-13) 237 A.C.W.S. (3d) 186.

Administrative Law

DUTY TO ACT FAIRLY

No procedural fairness obligations in relation to contribution agreements

Citizenship and Immigration Canada (CIC) had Language Instruction for Newcomers to Canada (LINC) program that provided funding for language instruction. CIC had provided funding to Canadian Arab Federation (CAF) under LINC program for many years. Minister of Citizenship and Immigration decided to discontinue funding to CAF under LINC program. Minister’s decision was based on CAF having made statements that promoted hatred, anti-Semitism, and support for banned terrorist organizations. Minister declined request to meet with CAF. CAF brought application for judicial review. Application dismissed. Minister did not owe duty of procedural fairness to CAF. Nature of relationship was strictly commercial. There was no statutory provision that imposed procedural fairness obligations in relation to contribution agreements. There was no contractual provision stipulating service provider organizations would be treated in procedurally fair manner. Imposing procedural rights would unduly burden Minister. Parties’ rights were best protected by reviewing court’s assessment of reasonableness of decision. In absence of duty of procedural fairness, no consideration had to be given to issue of reasonable apprehension of bias.
Canadian Arab Federation v. Canada (Minister of Citizenship and Immigration) (Dec. 23, 2013, F.C., Russel W. Zinn J., File No. T-447-09) 237 A.C.W.S. (3d) 4.
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