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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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Prisons

INMATES’ RIGHTS

No right for prisoner in institution to evade service of legal documents

Prisoner applied for review of disciplinary decision fining him $20, suspended for 21 days, after finding him guilty of disobeying order. Prisoner refused to attend office for purpose of accepting legal documents being served on him, despite being instructed on multiple occasions to do so. Prisoner argued that there was distinction as to whether he was “directed” or “ordered” to attend office. Prisoner argued that he had right to evade service of legal documents. Application dismissed. Whether language constituted “order” was question of mixed fact and law. Words “order” and “direct” were synonyms and there was no merit in prisoner’s attempt to distinguish between terms, particularly in context of daily administration of correctional institution. Court was being requested to reweigh evidence, which was not proper ground for judicial review. Prisoner misunderstood purpose of service of legal documents, as requirement to serve documents in legal proceeding was for purpose of upholding person’s right to be advised of actions by state brought against him engaged at behest of legal party, and to be able to defend proceedings. Any person seeking to evade service would have been implicitly acknowledging legitimacy of proceedings being brought against him or her and thereby seeking to frustrate administration and proper course of justice. As prisoner was incarcerated in penal institution, authorities were required, both for purpose of protecting prisoner’s rights to procedural fairness and for purpose of contributing to promotion of administration of justice, to permit and facilitate service of documents on prisoner when requested to do so by persons engaged in lawful legal proceedings. There was no right for prisoner in institution to evade service of legal documents and therefore no justification to disobey order by prison authorities to attend for that purpose.
Johnson v. Warkworth Institution Disciplinary Court (Aug. 27, 2013, F.C., Peter Annis J., File No. T-1127-12) 109 W.C.B. (2d) 214.

Immigration

EXCLUSION AND EXPULSION

Officer failed to consider relevant, current evidence

Immigration Officer concluded that applicant’s proof of membership in Mouvement pour la Solidarité et la Démocratie (“MSD”) was not sufficient to establish that applicant would be perceived as enemy of Burundian government. Officer dismissed evidence from third party that applicant was on list of MSD members in exile. Officer considered it speculative that government even had such list. Officer ultimately concluded that, despite evidence of government sanctioned human rights abuses, self-imposed exile of MSD members and brief detentions for illegal political meetings, there was insufficient proof of Burundian government imprisoning and torturing members of MSD. Judicial review allowed. Officer failed to consider significant evidence which ran counter to officer›s determination. That evidence was more current and cogent than that relied on by officer. Given failure to consider relevant, current evidence in respect of PRRA application, it was unreasonable to dismiss PRRA application without regard for this evidence.
Bizima v. Canada (Minister of Citizenship and Immigration) (Jul. 29, 2013, F.C., Michael L. Phelan J., File No. IMM-5952-12) 231 A.C.W.S. (3d) 775.

Air Law

LICENCES

Test articulated by panel provided no insight into what a segment of the public was

Application for judicial review of panel’s decision upholding agency’s decision to issue administrative penalty against applicant for contravening s. 57(a) of Canada Transportation Act by operating air service without license. Applicant was hotel casino and spa in New Jersey. Between July 2008 and March 2009, two aircraft owned and operated by applicant made ten flights between Atlantic City and Toronto or Montreal to transport some of applicant’s Canadian customers. Agency issued notice of violation and $25,000 penalty. Applicant filed request for review and argued flights were only offered to high-level customers and entirely at applicant’s discretion, so were not publicly available. Agency argued guests were simply subset of public. Member found applicant had not contravened s. 57(a) because it did not publicize flights and members of public could not inquire about them or book them, and no customer had reasonable expectation of receiving flight. Agency appealed and panel found nature of service determined whether flights were publicly available, and customers who received free flights and continued spending at high level would likely receive more free flights, so member’s finding premium clients did not have reasonable expectation of free flights was incorrect. Panel found applicant was operating publicly available service, but reduced penalty to $12,500 as it was first offence. Applicant argued decision was unreasonable as panel failed to articulate intelligible standard. Application allowed. Test articulated by panel, that service available to only segment of public was publicly available, bordered on tautological as it provided no insight into what a segment of the public was. Member’s test, on the other hand, provided useful tool for analyzing whether users were segment of public. While panel provided cogent reason for rejecting member’s test, same could not be said for test it substituted. Panel gave no explanation for preferring vague test and its decision was unreasonable. Not appropriate for court to articulate test given expertise of tribunal, so matter returned to Transportation Appeal Tribunal for redetermination.
Marina District Development Co. v. Canada (Attorney General) (Jul. 18, 2013, F.C., John A. O’Keefe J., File No. T-324-12) 231 A.C.W.S. (3d) 295.

Administrative Law

NATURAL JUSTICE

No doubt that DVD recording was electronic document

Applicant served in Canada Forces. Board confirmed decision to grant applicant two-fifths award for adjustment disorder with mixed mood from aggravated pre-existing medical condition. Application for judicial review was allowed. Rules of procedural fairness were not followed. Board misinterpreted its rules by refusing to allow applicant opportunity to present DVD recording of alleged harassment. There was no doubt that DVD recording was electronic document. Applicant was denied fair opportunity to make arguments. Viewing of video recording could have had impact on awarding of disability pension. Doctor’s report was not on record on which board based decision and report was key element with respect to statutory presumptions concerning applicant.
Grenier c. Canada (Procureur général) (Feb. 28, 2013, F.C., Sean Harrington J., File No. T-1961-11) 231 A.C.W.S. (3d) 399.

Citizenship

OFFENCES

Officer did not have discretion to act for oblique motive

Adoptive father adopted two teenagers. Quebec Court recognized adoption judgment rendered in Haiti. Applicant received letter indicating citizenship application was granted. Clerical error happened and citizenship application was ultimately refused nearly two years later. Applicant was convicted of offences and removal order was made against applicant. Applicant was permanent resident. Applicant’s application for citizenship for person adopted by Canadian citizen was refused. Applicant’s adoption was found not to comply with rules of country where adoption took place because Institute not Social Affairs Officer approved adoption. Application for judicial review was allowed. Decision was unreasonable. Citizenship officer did not personally verify procedures that applied in Haiti and in Quebec at time of applicant’s adoption. Authenticity of adoption judgment and applicant’s Haitian birth certificate were not in issue. Evidence on record showed officials were uneasy about applicant’s criminality and were working toward outcome. Officer engaged in selective reading of evidence and ignored all evidence submitted in support of citizenship application. Final judgment of foreign court became res judicata particularly since judgment received judicial recognition in Quebec. Applicant was legally adopted. Argument that adoption was entered primarily for purpose of acquiring status was pretext. Adoption was in best interests of child and created genuine parent-child emotional bond. Parental authority of biological parents was transferred to adoptive father. Officer did not have discretion to act for oblique motive or to not approve citizenship application that otherwise met conditions of legislation.
Dufour c. Canada (Minister de la Citoyenneté et de l’Immigration) (Apr. 4, 2013, F.C., Luc Martineau J., File No. T-802-12) 231 A.C.W.S. (3d) 41.

Citizenship

APPEAL

Citizenhip judge could not blend together three methods for determining citizenship

This was appeal of citizenship judge’s decision. Citizenship officer prepared document that described contradictions, irregularities and omissions in citizenship applicants’ record. Case was referred to citizenship judge to determine whether applicants were eligible for citizenship under s. 5(1)(c) of Citizenship Act (Can.), and citizenship judge found they were. Appeal allowed. Citizenship judge’s decision was not adequately reasoned to enable it to be understood where he took numbers or how he calculated numbers. Decision was incomprehensible so error of law was committed. Citizenship judge could chose between three methods for determining citizenship, but he could not blend three together. Due to omissions, contradictions and implausibilities, citizenship judge’s analysis was not reasonable or correct.
Canada (Ministre de la Citoyenneté et de l’Immigration) c. Salameh (Jan. 24, 2013, F.C., Michel M.J. Shore J., File No. T-167-12) 231 A.C.W.S. (3d) 40

Administrative Law

JUDICIAL REVIEW

Lack of individual feedback tainted decision

This was application for judicial review of decision of selection board. Applicant applied for three positions. Decision concluded that applicant’s application did not meet pre-requisite criteria for three selection processes. Decision arose after judge ordered reconsideration by differently constituted board. Decision established that members of selection board met with applicant’s supervisor to clarify her tasks without applicant being present; that review of information allowed them to determine that applicant did not meet expectations at pre-requisite stage; and that selection board informed applicant that staffing program did not provide recourse following application of corrective measure. Application granted. Selection board confused corrective measures that might be taken in context of assessment of pre-requisites with corrective measure that had been judge’s decision to refer matter back for consideration by differently constituted board. Case was under de novo review and applicant was entitled to individual feedback. Applicant did not receive reasons for rejection of application, which would have allowed for corrective measures to be taken as program provided. Approach constituted breach of audi alteram partem rule. Lack of individual feedback deprived applicant of advice on professional development needs and it tainted decision. Situation called for completely new assessment.
Tran c. Canada (Procureur général) (May. 1, 2013, F.C., Yvan Roy J., File No. T-728-12) 231 A.C.W.S. (3d) 4.
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