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Immigration

EXCLUSION AND EXPULSION

Fair reading of report left people feeling applicant was ticking time bomb

Applicant had been permanent resident since 1991, after being found refugee from Ethiopia. Applicant was sentenced to six and one-half years’ imprisonment after being convicted of incest on older daughter and assault on younger daughter and was ordered deported upon release. In danger opinion, delegate noted crimes were serious, with incest on older daughter for seven years and multiple assaults including blows to head on younger daughter. Applicant denied incest and assaults and insisted he was disciplining children. Applicant expressed no remorse and refused treatment. Psychologist opined applicant was low to moderate risk to re-offend and diagnosed pedophilia. Delegate concluded applicant was danger to public without treatment, and continued denial and lack of remorse prevented his rehabilitation. Application by judicial review of danger opinion. Application dismissed. Delegate did not ignore fact applicant had not re-offended for twelve years and fact he did not place as much emphasis on this factor as applicant would have liked did not render decision unreasonable. Delegate, not psychologist, had burden of assessing risk and was entitled to deference for decision that was reasonable as a whole. Fair reading of psychologist’s report would have left many reasonable people with feeling applicant was a ticking time bomb.
Yalemtesfa v. Canada (Minister of Citizenship and Immigration) (Dec. 13, 2013, F.C., Michael L. Phelan J., File No. IMM-1201-13) 236 A.C.W.S. (3d) 449.

Citizenship

APPEAL

No way to tell from record why DNA requirement imposed, and upon what authority

Delegate of Minister of Citizenship and Immigration (“officer”), had refused application of foreign national citizen of Philippines (“mother”) and her husband, who was Canadian citizen (“father”) on behalf of their minor child, for Certificate of Citizenship under s. 12(1) of Citizenship Act (Can.). Citizenship and Immigration Canada found that there was insufficient proof that Canadian citizen was child’s biological father, and therefore refused application for Citizenship Certificate. Father and mother were advised that DNA evidence would be required to establish that Canadian citizen was child’s father. Certificate of Live Birth for child had been provided, however DNA evidence was not provided and application for Citizenship Certificate was denied. Only reason given for DNA demand and refusal to accept birth certificate was that child was born at home with mid-wife and not in hospital. Application allowed; decision quashed and matter returned for reconsideration by different officer. Reason why DNA requirement was needed for child born at home was not articulated. There was no evidence that reason for this requirement was ever explained to mother and father or that it was publically available in policy manual or elsewhere. There was no indication that mother and father were advised that s. 3(1)(b) could be satisfied in any other way than through DNA testing. There was no way to tell from record why DNA requirement had been imposed, and upon what authority. Without this information, decision lacked intelligibility and transparency to render it reasonable. Because rationale and legal justification for DNA requirement were never explained to mother and father, they had no opportunity to argue or explain why it should not be applied to them, or opportunity to offer alternative evidence that could suffice to satisfy s. 3(1)(b) of Act. This was procedurally unfair.
Watzke v. Canada (Minister of Citizenship and Immigration) (Jan. 8, 2014, F.C., James Russell J., File No. T-229-12) 236 A.C.W.S. (3d) 301.

Agency

PARALEGALS

Claimant waived his right to be heard since consultant was acting as his agent

Refugee claimant was young male Tamil citizen of northern Sri Lanka who alleged fear of persecution by Sri Lankan Army and paramilitary group Eelam People’s Democratic Party. Claimant left Sri Lanka and came to United States where he was arrested and detained, and later released on bond. Claimant subsequently came to Canada where he claimed refugee status. At end of hearing on October 29, 2012, Refugee Protection Division (“RPD”) granted claimant one month to obtain documents from American Immigration authorities. Hearing was adjourned before claimant’s counsel, immigration consultant, could make his final submissions. On December 7, 2012, claimant’s immigration consultant submitted to RPD documents he obtained from claimant’s counsel in United States, which did not include documents requested by RPD, along with letter stating that his client did not have means to obtain any other documents, but was willing to sign release to Canadian Borders Services Agency, so that it might obtain information directly from United States government. RPD rendered its decision on February 21, 2013, without second hearing, finding that claimant lacked credibility. Claimant applied for judicial review, contending that he had been denied procedural fairness as second hearing did not take place and his immigration consultant was incompetent. Application dismissed. Claimant had provided no evidence as to instructions given to his immigration consultant on basis of which court could determine whether consultant’s conduct constituted incompetence. Nor had claimant established that he had suffered prejudice as result of consultant’s conduct or that miscarriage of justice had occurred. Alleged incompetence of claimant’s immigration consultant did not amount to breach of procedural fairness. After adjournment of first hearing, there had been consistent exchange between RPD and consultant and at no time after cancellation of second hearing did consultant object to cancellation because he wanted to make submissions. Claimant waived his right to be heard and to present submissions through his immigration consultant’s actions, since consultant was acting as agent of claimant. Accordingly, there had been no breach of procedural fairness which would warrant court’s intervention.
Pathinathar v. Canada (Minister of Citizenship and Immigration) (Dec. 9, 2013, F.C., Simon Noël J., File No. IMM-2412-13) 235 A.C.W.S. (3d) 1040.

Aboriginal Peoples

SELF-GOVERNMENT

Minister had no authority to remove applicants from office

Applicants were elected as chief and councillors of First Nation. Minister investigated allegations of corruption against applicants. Minister removed applicants from office and disqualified them from running again for two years. Applicants brought application for judicial review of Minister’s decision. Application granted. Minister had no authority to remove applicants from office and disqualify them from running in future elections because he did not make finding that anyone was guilty of corrupt practice. Decision was consistent with appearance of corrupt practice, which was not proper standard of proof under s. 78 of Indian Act (Can.). Ordinary civil standard of proof was most apt for s. 78 as it was not criminal provision, but more than mere appearance of impropriety was required.
Woodhouse v. Canada (Attorney General) (Oct. 21, 2013, F.C., James W. O’Reilly J., File No. T-1351-13) 235 A.C.W.S. (3d) 863.

Citizenship

APPEAL

Rigorous physical presence test for determination of citizenship residency requirements 

Foreign national of Pakistan became permanent resident of Canada, spent four days in Canada, then returned to college in California. Three years later, foreign national applied for citizenship. Foreign national had spent either 143 days or 159 days, as stated alternatively in her documents, being physically present in Canada in preceding four years. Citizenship judge granted citizenship on ground foreign national had centralized her mode of residence in Canada, and met requirements of s. 5(1)(c) of Citizenship Act (Can.), even though she fell short of Act’s requirement of 1,095 days of physical presence in Canada in four years preceding her application. Minister brought application to appeal and set aside decision of citizenship judge. Application granted. Decision of citizenship judge set aside, to be disposed of by different panel in accordance with directions concluding that foreign national had not met residency requirements of Act. Report of Standing Committee on Citizenship and Immigration made in 1994 considered s. 5(1)(c) of Act, and appropriateness of Federal Court’s decisions truncating requirements of physical presence to establish residency committee concluded that definition of residency in new Act should require significant degree of physical presence preceding citizenship application. While its recommendations did not lead to legislation changing residency test, committee did unanimously endorse rigorous physical presence test for determination of citizenship residency requirements. Extrinsic evidence endorsed continuing legislative purpose of s. 5(1)(c) that would impose either significant physical residency requirement very nearly approaching three years, or, as exception to rule, some other truly analogous circumstance that can stand in for Canadianization.
Canada (Minister of Citizenship and Immigration) v. Naveen (Oct. 18, 2013, F.C., Peter Annis J., File No. T-1959-12) 235 A.C.W.S. (3d) 608.

Immigration

REFUGEE STATUS

All documents filed must be considered before coming to conclusion

Foreign national was alleged citizen of Democratic Republic of Congo (“DRC”) who claimed refugee protection on basis of his political opinion and risk of torture if returned to DRC. Foreign national fled DRC, and came to Canada using false British passport, on which he had inserted his photo. University letter and transcript submitted by foreign national contained numerous spelling errors. Foreign national also submitted driver’s licence and voter card, which included photograph and also submitted arrest warrant, all of which board concluded were not genuine documents. Board rejected claim on ground foreign national had not established his identity. Application granted. Board failed to deal with applicant’s original voter card, which was national identity card in DRC, and his driver’s licence. Board could not come to reasonable assessment of applicant’s identity by only focusing on those documents where authenticity appeared doubtful and ignoring those documents which appeared to be trustworthy. All documents filed and explanations provided by applicant must be considered before coming to conclusion. Board erred in determining that applicant had not established his identity.
Kabongo v. Canada (Minister of Citizenship and Immigration) (Oct. 25, 2013, F.C., Yves de Montigny J., File No. IMM-8204-12) 235 A.C.W.S. (3d) 475

Administrative Law

JUDICIAL REVIEW

Rule of non-interference with ongoing administrative processes vigorously enforced

Applicant sought to prohibit or restrain ongoing investigation by Public Sector Integrity Commissioner into allegations of wrongdoing made against her pursuant to s. 26 of Public Servants Disclosure Protection Act (Can.). Attorney General, on behalf of named respondents, applied for order striking out applicant’s notice of application for judicial review. Attorney General claimed application was premature, as being contrary to rule of non-interference with ongoing administrative processes, which might in any event not come to conclusion against applicant, thereby rendering matter moot. Application allowed. Rule of non-interference with ongoing administrative processes was vigorously enforced, being permitted only in narrowest of exceptional circumstances measured against exceptionally high threshold. In this case, there were no exceptional circumstances that would permit interference with commissioner’s on-going investigation.
Cousineau-Mahoney v. Canada (Public Sector Integrity Commissioner) (Nov. 7, 2013, F.C., Peter Annis J., File No. T-1210-13) 235 A.C.W.S. (3d) 287.
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