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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

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.

Aboriginal Peoples

SELF-GOVERNMENT

Applicant not prejudiced by approach when he knew residency was requirement

Applicant was member of respondent who was nominated as candidate in election. Applicant swore declaration that he met eligibility requirements for candidacy. Applicant was elected as councillor. Elections officer received complaint that applicant did not meet residency requirements of election law. Appeal committee held hearing. Applicant asserted he was not permitted to attend hearing. Appeal committee requested documents from applicant but he did not respond. Appeal committee decided to remove applicant from his position as councillor due to his ineligibility to run for council under First nation election law. Applicant sought judicial review. Application dismissed. There was no procedural unfairness. Applicant was not prejudiced by approach when he knew residency was requirement. Applicant was made fully aware of case he had to meet and what appeal committee required him to do. Applicant was given reasonable opportunity to present his case. Election law was not followed to letter, but applicant was informed orally and in writing that his election as councillor was being questioned because his residency was in doubt. Applicant made no effort to attend hearing. Applicant could not shield himself from fact that he knew his residency was in doubt when he accepted nomination by citing formalities of election law. Appeal committee did not unreasonably interpret election law and assume jurisdiction to deal with complaint against applicant in way it did.
Jacko v. Cold Lake First Nations (Nov. 21, 2014, F.C., James Russell J., File No. T-1656-13) 247 A.C.W.S. (3d) 493.

Immigration

PERSON IN NEED OF PROTECTION

Decision was unreasonable as process of critical analysis not followed

Refugee claimant was Roman Catholic Christian citizen of Bangladesh who alleged fear of persecution by Muslim extremists. Claimant alleged that on way home from church he had been accosted by five Muslim men, one of whom had extorted money from him previous year. Claimant alleged that men identified themselves as being members of Muslim extremist group and that they threatened him and berated him for promoting Christianity and denigrating Islam. RPD found that men were only interested in extorting money from claimant, and that claimant lacked credibility because he had not sought advice or assistance from priest. RPD denied claim. Claimant applied for judicial review. Application granted; decision under review set aside and matter referred back for redetermination by differently constituted panel. Claimant had given clear, direct evidence that he did not seek assistance from priest because priests had suffered from getting involved in these disputes. RPD’s implausibility finding was unsupported speculation, and therefore decision under review was made in reviewable error that rendered it unreasonable. RPD was required to find what might reasonably be expected of Christian in Bangladesh who suffered incident of religious persecution and extortion by extremist Muslim men, make findings of fact about claimant’s response and conclude whether response conformed with what might be reasonably expected. As this process of critical analysis was not followed, decision was unreasonable.
Rozario v. Canada (Minister of Citizenship and Immigration) (Nov. 4, 2014, F.C., Douglas R. Campbell J., File No. IMM-4349-13) 247 A.C.W.S. (3d) 178.

Customs and Excise Offences

GENERAL

Actual possession restricted to physical possession

Plaintiff and wife were catching flight to St. Martin when they were stopped by Canadian Border Services Agency officer. They told officer they did not have cash in amount of $10,000 CAD or more. Search revealed that plaintiff was carrying currency worth $13,820.69 CAD. Officer seized funds and penalized plaintiff $2,500 before letting him leave with balance of funds. Plaintiff believed that he did not need to report money since he and his wife jointly owned it. Plaintiff appealed. Minister’s delegate affirmed officer’s decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) had been violated and penalty was appropriate. Plaintiff appealed. Appeal dismissed. Term “actual possession” in s. 12 of Act did not imply ownership. Word “actual” excluded constructive possession and restricted meaning of phrase to physical possession. Plaintiff held money and wife could only access funds if he handed them to her so only he had actual possession of funds and had to report funds pursuant to s. 12(3)(a) of Act. There was no reason to depart from plain language of s. 12(3)(a) and read into it exception for joint owners travelling together. Section 12(1) of Act was strict liability offence and plaintiff’s subjective intention was not relevant. Plaintiff did not make any attempt to clarify how much money he could carry given he was travelling with wife. Officer did not give advice to plaintiff.
Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 29, 2014, F.C., John A. O’Keefe J., File No. T-145-10) 117 W.C.B. (2d) 261.

Crown

ARMED FORCES

Critical issue was whether veteran had been exposed to Agent Orange

Veteran started serving in Canadian Armed Forces around 1955. Veteran was allegedly exposed to herbicide known as “Agent Orange” in 1967. Veteran retired in 1975 when he was 43 years old. Veteran was diagnosed with prostate cancer when he was 63 years old. Veteran unsuccessfully applied for pension entitlement for prostate cancer. Veteran unsuccessfully appealed to Veterans Review and Appeal Board and unsuccessfully sought reconsideration. All decisions concluded there was no evidence that veteran had been exposed to Agent Orange. Veteran unsuccessfully sought further reconsideration based on new evidence. Veteran brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness in light of prior authorities, and decision was not reasonable. Critical issue was whether veteran had been exposed to Agent Orange. Board chose to prefer findings of particular report that use of Agent Orange was limited over statements of veteran and his comrades that they had been exposed. Board read more into report than it actually stated. In particular, there was no clear finding in report that ordinary soldiers were restricted from spray sites and did not have access to these sites. Author of report acknowledged degree of exposure of individual to any chemical sprayed was indeterminable. Veteran should have been entitled to benefit of doubt pursuant to s. 39 of Veterans Review and Appeal Board Act (Can.). Nonetheless, determination of whether veteran was exposed to Agent Orange and extent of any exposure was better left to board.
McAllister v. Canada (Attorney General) (Oct. 17, 2014, F.C., Yves de Montigny J., File No. T-470-14) 246 A.C.W.S. (3d) 829.

Immigration

INADMISSIBLE AND REMOVABLE CLASSES

Conditional sentence did not represent term of imprisonment

In 1989, applicant arrived in Canada from Vietnam and became permanent resident. In 2013, he was convicted on charge of producing marijuana and given conditional sentence of 12 months to be served in community. Officer of Canadian Border Services Agency referred applicant’s file to Immigration Division to decide whether applicant should be found to be inadmissible to Canada for having been convicted of offence for which term of imprisonment greater than six months had been imposed, or offence punishable by maximum term of imprisonment of at least 10 years. Applicant applied for judicial review of officer’s decision. He asked court to overturn officer’s decision and order another officer to reconsider question of his inadmissibility to Canada. Application allowed. Applicant’s conditional sentence of 12 months did not represent term of imprisonment greater than six months. Conditional sentence was not term of imprisonment within meaning of Immigration and Refugee Protection Act (Can.). Applicant’s offence was punishable by maximum of seven years’ incarceration. While maximum sentence was subsequently raised to 14 years, applicant was not punishable by sentence of that duration. Officer should not have considered arrests and dropped charges that did not result in convictions. That rendered his decision unreasonable. Matter was referred back to another officer for reconsideration.
Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 4, 2014, F.C., James W. O’Reilly J., File No. IMM-7208-13) 246 A.C.W.S. (3d) 649.

Evidence

SPOLIATION

Adverse inference drawn that evidence intentionally destroyed to affect litigation

Plaintiff was vessel owner who left his fishing vessel with defendant for routine maintenance. Defendant lifted vessel out of water and purported to secure it in cradle. About two weeks later, vessel fell during high wind and suffered damage to fibreglass hull. Defendant disposed of cradle material before marine surveyor attended to inspect vessel about two days after incident. Plaintiff brought action against defendant for damages for negligence. Action allowed. Plaintiff was awarded total of $269,206.85 as claimed. Adverse inference was drawn that evidence was intentionally destroyed to affect litigation. Defendant ought to have known that litigation would be contemplated by plaintiff and that disposing of cradle material would affect any future claim made by plaintiff. It was not necessary for party to receive actual notice of litigation. Rebuttable presumption was raised that evidence was unfavourable to defendant. Defendant had not provided sufficient evidence to rebut this presumption.
Forsey v. Burin Peninsula Marine Service Centre (Oct. 20, 2014, F.C., E. Heneghan J., File No. T-298-12) 246 A.C.W.S. (3d) 699.
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