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Courts

JURISDICTION

Unclear what legal basis applicant relied upon in bringing application to court

Applicant purchased 114 properties between 2004 and 2013 as part of long standing effort to construct second span of Ambassador Bridge over Detroit River. In September 2013, respondent city issued repair orders in relation to 114 vacant properties as they had become blight on community. Applicant appealed those orders to Property Standards Committee. In October 2013, applicant filed application to Federal Court seeking declaration that, among other things, Ambassador Bridge was considered “federal undertaking”, and as such, was not subject to municipal by-laws. City brought motion to strike out notice of application on grounds that Federal Court did not have jurisdiction to hear application. Motion granted. It was plain and obvious that application lacked reasonable cause of action, and that it was bereft of any possibility of success. Applicant did not appear to be challenging any particular decision of city, Property Standards Committee, or any order of federal board, commission or other tribunal. Rather, it appeared to be simply seeking legal opinion regarding applicability of Act to Incorporate the Canadian Transit Company from court. Court did not have statutory authority to grant such remedy. It was equally unclear what legal basis applicant had relied upon in bringing application to court.
Canadian Transit Co. v. Windsor (City) (May. 21, 2014, F.C., Michel M.J. Shore J., File No. T-1699-13) 240 A.C.W.S. (3d) 875.

Citizenship

APPEAL

Judge did not raise discrepancy in declared absences with foreign national

Foreign national was stateless individual who was born in Kuwait and who became permanent resident of Canada on June 7, 2003. Foreign national applied for citizenship on August 8, 2008. Foreign national had interview before judge on April 18, 2013. Foreign national did not submit passport which covered period from September 10, 2004 to May 4, 2009, so that absences were not verifiable. Judge noted credibility concerns regarding discrepancy between absences listed on foreign national’s original application (354 days) and his residence questionnaire (34 days). Judge was not satisfied that foreign national had proven that he was physically present in Canada for 1,095 days during relevant period and denied application. Foreign national appealed. Appeal allowed; application referred back to another citizenship judge for re-determination. While judge’s decision was not unreasonable, decision hinged on negative credibility finding, based on discrepancy in declared absences, however judge did not raise this discrepancy with foreign national. Given necessary procedural fairness afforded to applicants in citizenship applications and centrality of this issue to foreign national’s claim, there had been breach of procedural fairness.
Abdou v. Canada (Minister of Citizenship and Immigration) (May. 26, 2014, F.C., Michael D. Manson J., File No. T-1638-13) 240 A.C.W.S. (3d) 814.

Aboriginal Peoples

SELF-GOVERNMENT

Chief not provided with opportunity to address concerns before his suspension was decided

Application for judicial review of resolution adopted by Band Council of respondent First Nation on June 8, 2012, whereby it was decided that applicant chief was not to represent views of Band Council, that his pay and allowance be suspended, and that he be denied access to offices, equipment, e-mail and phones. Reason for sanctions was alleged to have been letter sent by Chief to Prime Minister and Minister of Aboriginal Affairs and Northern Development Canada without the approval of Band Council. Letter highlighted, among other things, mishandling of money by Band Council. Application granted. Decision of Band Council to suspend chief and to strip him of his remuneration, his powers and access to his office until he accepted conditions imposed upon him was unreasonable and went beyond powers granted to Band Council by s. 84 of First Nation’s Election Policy. While one may disagree with tone of his letter, it could not reasonably be said that chief did not perform his responsibilities and leadership by calling for police investigation. There were certainly enough credible allegations of wrongdoing to raise legitimate concerns. Band Council also breached procedural fairness by suspending chief. Chief was not provided with any meaningful opportunity to address concerns of Band Council before his suspension was decided. Band Council resolution suspending chief was quashed, and First Nation was ordered to pay chief remuneration and other benefits he should have been allowed for period between June 11, 2012, and end of his term of elected office.
Tsetta v. Band Council of the Yellowknives Dene First Nation (Apr. 29, 2014, F.C., Yves de Montigny J., File No. T-1922-12) 240 A.C.W.S. (3d) 526.

Aboriginal Peoples

CROWN RELATIONSHIP

Not clear limitation period had begun as agreements still in force

Plaintiffs commenced action against Canada for damages for flooding of reserve lands and loss of land and its use, as well as loss of hunting, fishing and harvesting rights. Flood was caused by building of dam for hydro. Canada, Ontario and Manitoba entered into cost sharing agreements for capital costs related to dam, latter of which added compensation to capital costs. Manitoba made its final payment under agreement in 1980. In response to action, Canada issued third party claim against Ontario and Manitoba. Motion by Manitoba to be removed as third party on basis it had met obligations and been released from further liability and time had run out to add it. Motion dismissed. Not clear Manitoba no longer had obligations under agreement and some compensation had already been treated as capital costs. Not clear any party’s obligations had been discharged and not all losses to band had been settled. As agreements were still in force, it was not clear limitation period had even begun to run yet. No evidence Canada ever acquiesced to Manitoba’s refusal to accept liability or made representations it had been fully discharged. There was genuine issue for trial with respect to Manitoba’s liability, and action was not clearly out of time or barred by estoppel or doctrine of laches.
Southwind v. R. (Mar. 27, 2014, F.C., James W. O’Reilly J., File No. T-2579-91) 240 A.C.W.S. (3d) 525.

Charter of Rights

FUNDAMENTAL JUSTICE

Denying parole did not constitute, in and of itself, deprivation of liberty

Prisoner applied for judicial review of decision of Parole Board, Appeal Division, which upheld decision of Parole Board denying prisoner day and full parole for deportation. Prisoner was 52 year old UK citizen, who had lived in Canada since childhood but never obtained citizenship, serving life sentence for first degree murder of police officer. Murder occurred in 1983, while prisoner was unlawfully at large after having escaped from custody where he was detained for various robberies. Prisoner entered shopping mall with intention of robbing bank and noticed officer in food court, and shot him in chest, killing him. Prisoner took officer’s handgun, fired two additional shots in air and in food court’s crowd. Prisoner was arrested shortly thereafter at residence, where police found officer’s handgun, two loaded guns and sawed-off shotgun. Accused had previously been convicted for assault of peace officer, theft, possession of stolen property, mischief and failure to appear and had admitted to committing seven bank robberies. Since 1991, prisoner had been subject to deportation order. Prisoner had been denied parole each of several times he applied because he was found to pose undue risk. Prisoner appealed last such decision. Support for prisoner’s transfer to minimum security prison by case management team was withdrawn when prisoner became subject of ongoing criminal investigation. Prisoner argued that board erred in law and fettered its discretion in holding that “gradual and structured release” was “requirement” or pre-condition to granting of parole. Prisoner alleged that his deportable status barred him from any means to attain gradual and structured release. Application dismissed; no costs awarded. While board’s use of word “requirement” to designate “gradual and structured release” plan recommended by case management team might not have been most fortunate, it was not fatal and nothing in its decision suggested that it unlawfully fettered its discretion. Board noted that risk to society posed by release of prisoner had slowly decreased over time but it was such that full parole was not warranted at this point. While prisoner contended that his risk to society was now low, he did not allege that board made error on this point. Board’s decision was based on relevant statutory criteria and principles, was well reasoned and based on all information that was before it. Denying parole was merely modification of existing sentence and did not constitute, in and of itself, deprivation of liberty guaranteed by Charter.
Collins v. Canada (Attorney General) (May. 7, 2014, F.C., Richard Boivin J., File No. T-2243-12) 113 W.C.B. (2d) 309.

Citizenship

APPEAL

Strict physical presence test was principled approach to take

Foreign national was citizen of United States who entered Canada in 2001, and became permanent resident on Jan. 22, 2008. In February 2010, foreign national applied for Canadian citizenship. Citizenship judge noted that foreign national declared 156 days of absences from Canada in her citizenship application, but 205 days on her Residence Questionnaire and that foreign national was physically present in Canada for 958 days according to her citizenship application, but 909 days according to her Residence Questionnaire. Citizenship judge determined that foreign national failed to meet requirement that she be physically present in Canada for at least 1,095 days out of four years immediately preceding her application for citizenship. Foreign national appealed, contending that judge ought to have conducted qualitative assessment of evidence submitted which showed quality of her ties to Canada and that such an assessment would have allowed her to meet residency requirement, despite not satisfying physical presence test. Appeal dismissed. Based on plain and ordinary reading of Citizenship Act (Can.), strict physical presence test was principled approach to take. Discrepancy between dates cited by judge was explainable, however, in light of fact that neither absences cited on foreign national’s citizenship application or her Residence Questionnaire added up to 1,095 days of physical presence in Canada, this explanation was irrelevant to citizenship judge’s conclusion. Judge’s decision was not unreasonable.
Donohue v. Canada (Minister of Citizenship and Immigration) (Apr. 28, 2014, F.C., Michael D. Manson J., File No. T-1824-13) 240 A.C.W.S. (3d) 21.

Appeal

GROUNDS

Undisclosed documents went to pivotal issue of whether accused would have testified

Accused applied for judicial review of decision of Minister of Justice refusing to grant remedy regarding two convictions for fraud imposed and upheld on appeal. Accused was lawyer who joined two of his clients in starting family restaurant franchise, and sold shares in partnership. Project began to fall apart when popularity of restaurant was less than expected and its revenues declined, limited partnership was petitioned into bankruptcy by bank, and Securities Commission launched inquiry resulting in civil action and criminal charges. Accused was convicted of two counts of concealing information from investors. Accused put forward as grounds for his application non-disclosure of significant evidence at trial, including evidence that had been available to Crown, and new evidence allegedly discrediting certain witness testimony. Two key items of undisclosed evidence were detailed admissions of guilt by accused’s partners to Securities Commission and pre-trial agreement struck between those partners and investors in relation to action against accused for professional malpractice. Accused and his counsel at time of trial, gave evidence in support of application that they would have conducted defence strategy very differently had this information been known to them. Accused would have testified in his own defence and counsel would have attacked credibility of witnesses more aggressively. Instead, formal counsel stated he had deliberately avoided challenging evidence of elderly investors for fear of being seen to be too harsh on victims. Application granted with costs; matter returned to Minister for reconsideration. Minister’s delegate found that there was “reasonable possibility” that accused would have testified in his own defence and that his counsel may have changed his approach in cross-examining investors if Settlement Agreements and Assignment Deal had been disclosed at trial. Minister disagreed with these conclusions but did not interview witnesses or read volumes of documents assembled in investigation. Question to be decided was whether accused received fair trial as result of non-disclosure, not whether outcome would have been affected. Witnesses, accused’s partners and investors, were at heart of Crown’s case on counts on which accused was convicted. Undisclosed documents also went directly to pivotal issue of whether accused would have testified if he had known of them. Decision lacked justification, transparency and intelligibility and did not fall within range of possible, acceptable outcomes which were defensible in respect of facts and law.
Ross v. Canada (Minister of Justice) (Apr. 7, 2014, F.C., Richard G. Mosley J., File No. T-1790-10) 113 W.C.B. (2d) 196.
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