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Crown

ACTIONS AGAINST CROWN

Precondition to passport revocation that holder be convicted of indictable offence

Applicant and daughter attempted to check-in for flight from Lima to Toronto. Applicant and daughter’s passports had substituted bio-data page that had deficiencies compared to legitimate bio-data page. Passports were seized. Daughter stated that she altered passports one day before flight because she did not want to return to Canada. Respondent decided to revoke applicant’s passport and impose period of refusal of passport services for four years. Respondent determined applicant was aware of damage to passports yet attempted to travel with them away. Applicant sought judicial review. Application granted. It was precondition to passport revocation under s. 10(2)(b) of Canadian Passport Order, that passport holder be convicted of indictable offence. Applicant was never charged or convicted of indictable offence and decision to revoke her passport was made without authority. Revocation was invalid because passport expired by time it was purportedly revoked and Minister could only revoke unexpired passport.
Siska v. Passport Canada (Mar. 28, 2014, F.C., Russel W. Zinn J., File No. T-1180-13) 238 A.C.W.S. (3d) 878.

Administrative Law

FREEDOM OF INFORMATION

Claimed extension of time did not constitute deemed refusal of access

Department of National Defence (DND) had unspecified involvement in contract with company and sale of surplus military assets to Uruguay. Requester filed request under Access to Information Act (Can.), to obtain information from DND relating to these matters. In March 2011, DND informed requester that 30-day period in s. 7 of Act was being extended by 1,110 days pursuant to s. 9 of Act. Information Commissioner of Canada conducted investigation into length of extension and concluded in October 2012 that extension was invalid. DND provided requested records with some redactions in September 2013. Commissioner brought application for declaration that DND was deemed to have refused request by not responding within 30-day period in s. 7 of Act. Application dismissed. Commissioner’s authority to pursue judicial review was limited to refusals to disclose or to provide access to requested record. Court had to respect language of Act and could not redraft or reinterpret provisions to reach its own view of how its purpose could be better served. Claimed extension of time did not constitute deemed refusal of access even though commissioner had found it to be unreasonable. Prior authorities clearly stated there could be no deemed refusal under Act until time period had expired. Parliament’s clear intention was that requesters could complain about claimed extensions and commissioner could investigate, but that was extent of recourse. Since court had no jurisdiction to consider application pursuant to ss. 41 or 42 of Act, court did not need to consider whether extension claimed was reasonable.
Canada (Information Commissioner) v. Canada (Minister of National Defence) (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-92-13) 238 A.C.W.S. (3d) 789.

Immigration

REFUGEE STATUS

No evidence board would have proceeded with hearing two hours late

Applicant made refugee claim that was to be heard on merits at 1:00 p.m. on October 10, 2012. Applicant’s car broke down that day at 11:15 a.m.. Applicant’s counsel appeared and explained that applicant was not able to attend. Second hearing was ordered where applicant explained earlier absence and provided service station repair invoice. Applicant testified by time he had vehicle towed to garage it was 2:00 p.m. and he would not have made it to board’s office until 3:00 p.m. using public transit. Board concluded that applicant had not been diligent in pursuing claim because he did not take public transit and arrive two hours late for first hearing. Board decided that refugee claim had been abandoned and it was dismissed. Applicant sought judicial review of board’s decision. Application granted. Board’s decision was unreasonable. There was no evidence that applicant or counsel had any reason to believe that board would have proceeded with first hearing at 3:00 p.m. when it was scheduled to start at 1:00 p.m.
Gromer v. Canada (Minister of Citizenship and Immigration) (Mar. 4, 2014, F.C., Sandra J. Simpson J., File No. IMM-12831-12) 238 A.C.W.S. (3d) 713.

Courts

ABUSE OF PROCESS

Unreasonable for tribunal to find applicant’s complaints raised essentially same issues

Applicant was black African Canadian who worked at Immigration and Refugee Board. In 2004, applicant filed complaint with Canadian Human Rights Commission. Core of complaint related to incident that occurred in April 2003, during which racist comments were allegedly made. Complaint also included allegations of systemic discrimination, poisoned work environment and harassment. In 2007, applicant filed two complaints before Public Service Staffing Tribunal alleging that board’s decision to use non-advertised appointment process to staff new tribunal officers discriminated against him on basis of race. Applicant alleged that decision to use non-advertised process was tainted by systemic discrimination and constituted abuse of authority. Tribunal dismissed applicant’s complaints on grounds that he had not established prima facie case of discrimination. Commission forwarded applicant’s human rights complaint to tribunal for inquiry. Board brought motion to dismiss complaint. Tribunal found that subject matter of complaint had been previously adjudicated by tribunal, and that adjudicating complaint would amount to abuse of process. Applicant applied for judicial review. Application granted. Tribunal’s decision did not fall within acceptable outcomes. It was unreasonable for tribunal to conclude that tribunal had decided essentially same issues as those raised in human rights complaint. Having regard to both proceedings, issues raised in complaints could not be found to be essentially same. Fact that in both complaints applicant based allegations on systemic discrimination was insufficient to conclude that tribunal had already dealt with core of applicant’s allegations in human rights complaint. Allegations of systemic discrimination at board for period 2003-2004 were not central to issues raised in tribunal complaints related to choice of non-advertised appointment process in 2007. It was unreasonable for tribunal to find that applicant’s complaints before tribunal and tribunal raised essentially same issues. If tribunal’s finding that pre-conditions for applying doctrines of issue estoppel and abuse of process were met then it erred by not asking whether it would be fair to apply doctrines in specific circumstances of case and prevent applicant from having human rights complaint investigated.
Murray v. Immigration and Refugee Board (Feb. 11, 2014, F.C., Marie-Josee Bedard J., File No. T-229-13) 238 A.C.W.S. (3d) 709.

Admiralty

ARREST

Plaintiff not entitled to arrest sister ship once it exercised right to arrest offending ship

Vessel hit marine terminal trestle owned by plaintiff. Berth was rendered unusable pending repairs causing loss to plaintiff estimated to be in excess of $60 million. Plaintiff brought action and obtained warrant for arrest of vessel. Parties negotiated release of vessel. Original letter of understanding (LOU) was for security of $26 million against plaintiff’s claim. Plaintiff asserted there was common mistake that amount of available security was capped at value of vessel and there was mistake that right to arrest sister ships was weak or they were of little or no value. Plaintiff asserted it was subject to economic duress in agreeing to accept LOU in order to minimize disruption to business and mitigate financial losses. Plaintiff sought determination of whether there was binding agreement under which plaintiff agreed to waive right to arrest sister ships of defendant ship. Plaintiff sought determination of whether plaintiff could arrest offending vessel and sister ship. Motion dismissed. There was binding agreement to which plaintiff waived right to arrest sister ships. Plaintiff could not arrest offending ship and sister ship. In bringing motion with respect to multiple arrests, plaintiffs themselves implicitly acknowledged that issue was not clear cut since they were seeking determination of that question by court. There was no mistake and there was no basis to set aside agreement on ground of mistake. Plaintiff’s argument about economic duress was ill-founded. Defendant was entitled to take position that vessel would not be moved until security was posted and usual consequence of arrest was that ship would not be moved in absence of court order or consent. There was no coercion of will but there was bargaining. Plaintiff was not entitled to arrest sister ship to vessel once it exercised right to arrest offending ship. Section 43(8), of Federal Courts Act (Can.), did not give right to multiple arrests. Inherent ambiguity in “any” or “de tout” in s. 43(8) of Act was resolved by reference to use of singular “ship” in English version and “navire” in French version. There was no evidence that Parliament intended to provide right to multiple arrests in domestic domain when Convention made it clear that only one ship could be arrested.
Westshore Terminals Limited Partnership v. Leo Ocean S.A. (Feb. 7, 2014, F.C., E. Heneghan J., File No. T-2259-12) 238 A.C.W.S. (3d) 281.

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.
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