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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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Civil Procedure

COSTS

Delay in provision of redacted documents to citizenship applicant did not justify solicitor-client costs

Citizenship judge rejected application as permanent resident did not meet residency test. Permanent resident applied for judicial review which was dismissed. Permanent resident’s File Preparation and Analysis Template (FPAT), document was originally redacted from Certified Tribunal Record and then confidentially disclosed to permanent resident’s counsel. Minister had argued against disclosure of FPAT as disclosure of FPAT document could lead to individuals learning methods of fraud detection used by government. Permanent resident requested costs on solicitor-client basis regardless of outcome of judicial review. Request for costs denied. There was no evidence before court that Minister’s refusal to disclose redacted documents unnecessarily lengthened proceedings. Permanent resident’s basis for requesting solicitor-client costs was that he asked for redacted documents to be disclosed and Minister defended redactions. This was not basis for solicitor-client costs. Minister was entitled to object to disclosure of certain information pursuant to R. 318(2) of Federal Court Rules (Can.), and to defend his position in good faith. Minister did not unduly lengthen or delay proceedings. It took approximately three months before counsel for permanent resident was able to view redacted documents. This delay hardly rose to level of “reprehensible, scandalous or outrageous conduct” that was necessary to justify costs on solicitor-client basis.
Boland v. Canada (Minister of Citizenship and Immigration) (Mar. 25, 2015, F.C., Yves de Montigny J., File No. T-1090-14) 252 A.C.W.S. (3d) 405.

Administrative Law

JUDICIAL REVIEW

Press release was not decision and had no legal effect

So-called “decision” was made public in press release by Canadian Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was appointed. Mandate of inquiry committee was to review all issues and submit report to Canadian Judicial Council. Applicant sought judicial review. Respondent sought to strike out notice of application for judicial review asserting press release was not reviewable decision. Motion granted. Application for judicial review disclosed no reasonable cause of action, because it concerned press release, which was not decision and had no legal effect. No decision was made by inquiry committee.
Girouard c. Conseil Canadien de la Magistrature (Dec. 5, 2014, F.C., Luc Martineau J., File No. T-1557-14) 252 A.C.W.S. (3d) 384.

Privacy Legislation

ACCESS TO INFORMATION

Preparation fees respecting electronic records were authorized

Canadian citizen made request for three sets of records. Records existed in electronic form and did not have to be created from other records by computer. Human Resources and Skills Development Canada provided first set, but calculated fees of $4,180 for other two and required prepayment. Requestor complained to Officer of Information Commissioner. Parties brought reference. Current information officer asserted that fees to search for and prepare disclosure information found in governmental electronic records could be levied only with respect to electronic records that could be created with aid of computers. Attorney General asserted that fee could be levied irrespective of whether or not record currently existed. Electronic records were not non-computerized records for purpose of search and preparation fees authorized by s. 11(2) of Access to Information Act (Can.) and Access to Information Regulations (Can.). Regulations were amended in past and there was nothing to prevent further amendment now.
Canada (Information Commissioner) v. Canada (Attorney General) (Mar. 31, 2015, F.C., Sean Harrington J., File No. T-367-13) 252 A.C.W.S. (3d) 598.

Administrative Law

JUDICIAL REVIEW

Press release was not decision and had no legal effect

So-called “decision” was made public in press release by Canadian Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was appointed. Mandate of inquiry committee was to review all issues and submit report to Canadian Judicial Council. Applicant sought judicial review. Respondent sought to strike out notice of application for judicial review asserting press release was not reviewable decision. Motion granted. Application for judicial review disclosed no reasonable cause of action, because it concerned press release, which was not decision and had no legal effect. No decision was made by inquiry committee.
Girouard c. Conseil Canadien de la Magistrature (Dec. 5, 2014, F.C., Luc Martineau J., File No. T-1557-14) 252 A.C.W.S. (3d) 384.

Human Rights Legislation

HUMAN RIGHTS COMMISSION/TRIBUNAL

Section 6 of Indian Act (Can.) is not service pursuant to s. 5 of Canadian Human Rights Act

Complainants were registered as Indians under s. 6(2) of Indian Act (Can.) (IA), but were married to individuals who were not registered or entitled to be registered under IA. Complainants had children and applied for registration on behalf of children, but applications were refused. Complainants brought human rights complaints alleging that application of s. 6 of IA by government agency was discriminatory because it denied them ability to pass Indian status to their children. Human Rights Tribunal found it did not have jurisdiction to hear complaints under Canadian Human Rights Act (CHRA), because complaints were directed against legislation. Tribunal held that s. 6 of IA should be dealt with as challenge under Canadian Charter of Rights and Freedoms. Tribunal found that s. 6 of IA was not service pursuant to s. 5 of CHRA. Tribunal relied on PSAC v. Canada Revenue Agency (2012), 346 D.L.R. (4th) 488, 212 A.C.W.S. (3d) 870 (F.C.A.) (Murphy). Complaints were dismissed. Human Rights Commission applied for judicial review. Application dismissed. Standard of review was reasonableness. Murphy determined that legislation was not service as defined in s. 5 of CHRA. Legislative criteria that were determined by Parliament to identify individual as Indian were not service as envisioned by s. 5 of CHRA. Processing applications for registration might constitute service but not criteria that needed to be met to be registered as Indian under IA. Challenge to way formula was applied was challenge to law itself. It was law that denied access to benefit and not government agency. Tribunal’s analysis was reasonable, as was its reliance on Murphy. Murphy was binding and was not inconsistent with Supreme Court of Canada jurisprudence. Tribunal could not disregard binding jurisprudence on point from Federal Court of Appeal. Tribunal did not dispute that human rights legislation could render other legislation inoperable. Tribunal found it did not have jurisdiction to consider legislation as service in s. 5 of CHRA and primacy was not at issue. Tribunal did not err by failing to interpret s. 5 within context of former s. 67 of CHRA. It was possible to conclude that reasons for implementing s. 67 was to give Parliament opportunity to consult with First Nations regarding changes to IA. However, evidence was not sufficient to show that registration was intended to be service pursuant to s. 5 of CHRA. Section 67 was implemented prior to Charter and would have been only way of challenging IA provisions as discriminatory. Since Charter came into effect it was clear that Charter was appropriate means to bring challenge. Repeal of s. 67 would not be meaningless if tribunal followed Murphy. Tribunal’s decisions were reasonable.
Canadian Human Rights Commission v. Canada (Attorney General) (Mar. 30, 2015, F.C., Glennys L. McVeigh J., File No. T-1088-13, T-1777-13) 252 A.C.W.S. (3d) 308.

Citizenship

APPEAL

Officer erred in finding adoption entered into primarily for acquiring benefit of immigration or citizenship

Application for citizenship by child adopted by Canadian citizen. Adoptive mother was Canadian citizen who had applied to adopt five-year-old daughter of her cousin in St Vincent, who was single mother. Adoptive mother began adoption process in 2010 when child was baby. In 2010 court in St Vincent granted adoption of child to adoptive mother. In December 2013 adoptive mother submitted application for Canadian citizenship for child. Throughout interview both adoptive mother and biological mother gave same motivation/reasons for adoption i.e. comparatively superior medical care and schooling in Canada as opposed to St. Vincent. Adoptive mother wished to offer benefits of Canadian citizenship to child. Officer rejected application on ground adoptive mother  had failed to establish that adoption was in  best interests of child  and had not created  genuine parent child relationship as required by s. 5.1(1)(b) of Citizenship Act (Can.). Officer further concluded that adoption was entered into primarily for purpose of acquiring citizenship status for child. Adoptive mother applied for judicial review. Application granted. Legal relationship between biological mother and child was severed by St. Vincent court via grant of adoption. Fact that  adoptive and biological parent wished to give  child  better life in terms of access to medical care and schooling could not  support  finding that  primary intention of adoption was to evade immigration laws. Officer did not consider positive home study report, evidence that adoptive mother did not have children, was married with good income and wished to help others. Officer erred in making a finding that adoption was entered into primarily for acquiring benefit of immigration or citizenship and in finding that adoption was not in best interests of child. Officer also failed to consider steps adoptive mother would take, going forward, in order to establish genuine relationship with child, including fact that adoptive mother intended to take nine months maternity leave when child arrived in Canada.
Young v. Canada (Minister of Citizenship and Immigration) (Mar. 13, 2015, F.C., Donald J. Rennie J., File No. T-1527-14) 252 A.C.W.S. (3d) 15.

Administrative Law

JUDICIAL REVIEW

Applicant did not provide reasonable explanation for delay in bringing application

Respondent granted disposal at sea permit to ARS authorizing sinking of decommissioned ship to turn it into artificial reef at Marine Park. Applicant asserted respondent was prohibited by law from authorizing disposal at sea of ship containing allegedly banned substances (TBTs) in its hull. TBTs in ship’s hull were common ingredients in anti-fouling paint used on ship’s hull to prevent barnacles from growing on ship. Applicant sought judicial review. Respondent asserted application was filed too late. Application dismissed. Application was not commenced within 30-day time-limit and was filed too late. Application was filed more than two months beyond time-limit. Respondent should not be prejudiced by fact that it did not raise issue of lateness until it filed written submissions on application. Contents of application were not sufficient to transform what was otherwise challenge that was clearly focused on decision to issue permit, into challenge of broader course of conduct that included minister’s refusals to establish board of review and to suspend permit and 30-day time-limit applied. Court declined to exercise jurisdiction to grant extension of time. ARS suffered substantial prejudice as result of applicant’s failure to file application within time period. Applicant did not provide reasonable explanation for delay. Applicant did not show any intention to bring application sooner. Application was dismissed on merits. In any event respondent was not prohibited by law from issuing permit and issuance of permit was not unreasonable. Anti-fouling coating of ship’s hull was reasonably determined to be in non-active state. Respondent conducted extensive and thorough analysis over several years prior to issuance of permit.
Save Halkett Bay Marine Park Society v. Canada (Minister of the Environment) (Mar. 10, 2015, F.C., Paul S. Crampton C.J., File No. T-10-15) 252 A.C.W.S. (3d) 2.
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