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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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Immigration

JUDICIAL REVIEW

Public interest groups satisfied procedural requirements for intervention

Refugee claimants were Muslim citizens of Kosovo who came to Canada after entering United States. Refugee claimants unsuccessfully applied for refugee protection. Immigration and Refugee Board’s Refugee Protection Division (RPD) relied on lack of asylum claim in United States and insufficient evidence. Refugee claimants unsuccessfully appealed to board’s Refugee Appeal Division (RAD), which applied reasonableness standard of review. Refugee claimants commenced application for judicial review. Public interest groups brought motion for intervener status. Motion granted. This was apparently first case in which appellate function of RAD was focus. Given nature of case, it was apparent that issue of role and function of RAD transcended parties and particular facts of this case. Public interest groups were well established organizations dedicated to advocating on behalf of refugees. Public interest groups satisfied procedural requirements for intervention. Public interest groups, their clients, and their potential clients all had genuine interest in standard of review issue in this judicial review. Public interest groups provided different insight and perspective from that of refugee claimants. Allowing public interest groups to intervene was in interests of justice because issues in this judicial review were of potential precedential value.
Huruglica v. Canada (Minister of Citizenship and Immigration) (Aug. 22, 2014, F.C., Michael L. Phelan J., File No. IMM-6362-13) 245 A.C.W.S. (3d) 646.

Administrative Law

NATURAL JUSTICE

Switching of test once condition precedent met yielded breach of procedural fairness

Applicant was permanent resident. Applicant was abroad for vast majority of time on exchange program in Germany as part of her degree from university. Remainder of time abroad was spent visiting family in China. Citizenship Judge determined applicant did not accumulate requisite number of days of residence required and denied applicant’s citizenship application. Applicant appealed and matter was sent back for redetermination. Second judge advised applicant that if he found she was in Canada for 938 days she would receive positive decision. Judge found applicant was not in Canada for 1095 days. According to written decision and evidence applicant spent 938 days in Canada. Judge declined to make favourable recommendation for discretionary grant of citizenship. Applicant sought judicial review. Application granted. Switching of test once condition precedent was met resulted in breach of applicant’s legitimate expectation and yielded breach of procedural fairness. Applying differed citizenship test than that which was promised at hearing, when such decision was discretionary would not reach high threshold of bad faith. Applicant understood which test would be applied and governed herself accordingly.
Qin v. Canada (Minister of Citizenship and Immigration) (Sep. 10, 2014, F.C., Alan Diner J., File No. T-290-14) 245 A.C.W.S. (3d) 521.

Immigration

PERSON IN NEED OF PROTECTION

Only evidence of danger to applicant was speculative, remote, and unsubstantiated

Applicant was Hungarian citizen who was victim of large human trafficking ring in Canada. His statement was provided as evidence to support charges brought in Canada against Hungarian organized crime group who were involved with trafficking in human beings for Hungary. Applicant filed claim for protection. He feared that if he returned to Hungary, he would be harmed by Roma he implicated in crimes in Canada or by their family members or other members of their criminal organization. Refugee protection division of Immigration and Refugee Board rejected application on ground that applicant had not rebutted presumption of state of protection and that viable internal flight alternative existed for applicant in Hungary. Applicant applied for judicial review of decision. Application dismissed. Board’s decision was reasonable and constituted acceptable outcome in light of evidence on record and applicable legal principles. Board fully considered totality of evidence, including effectiveness of measures taken by Hungary. Board’s conclusion with regards to internal flight alternative in Hungary was also reasonable. Board indicated that only evidence of danger to applicant was speculative, remote, and unsubstantiated. If applicant entered witness protection program, he could benefit from such measures as personal protection, change of identity, and change of residence.
Cserkuti v. Canada (Minister of Citizenship and Immigration) (Oct. 8, 2014, F.C., Luc Martineau J., File No. IMM-4103-13) 245 A.C.W.S. (3d) 398.

Immigration

EXCLUSION AND EXPULSION

Removal officer not required to undertake substantive review of children’s best interests

Applicant and her three children, aged 20 to 24, were citizens of Mexico. Applicant left Mexico allegedly to flee threatening ex-husband and came to Canada in 2007. In June 2013, applicant married Canadian citizen with two children, aged 9 and 11. Applications for pre-removal risk assessment were dismissed in September 2013. Applicant alleged being primary caregiver to husband’s children. Removal order was issued. Applicants applied for stay of removal. Removal officer refused to grant stay. Applicant applied for judicial review of agent’s decision. Application dismissed. Standard of review of removal officer’s decision was reasonableness. Reviewing court owed deference to removal officer. Removal officer noted that applicant did not cite children’s best interest until two weeks prior to removal date, that applicant had only recently married children’s father, and that she was not their biological mother. Removal officer was not required to undertake substantive review of children’s best interests. Removal officer had limited discretion. Youth protection agency report indicated that children’s security and development were not compromised despite biological mother’s issues. Evidence did not support applicant’s premise that children would be in precarious situation if she left. Removal officer’s decision was reasonable.
Vargas Ezquivel c. Canada (Ministre de la Sécurité publique et de la Protection civile) (Oct. 20, 2014, F.C., Michel M.J. Shore J., File No. IMM-1052-14) 245 A.C.W.S. (3d) 392.

Immigration

JUDICIAL REVIEW

Board failed to consider applicant’s evidence independently from that of mother

Applicant was eight years old when he made claim for refugee protection. Applicant claimed he was verbally and physically assaulted in St. Lucia because his mother was lesbian. Board did not believe mother’s evidence about her sexual orientation and dismissed claim. Applicant applied for judicial review. Application granted. Board erred in its treatment of applicant’s testimony. Board discounted applicant’s testimony mainly because it doubted mother’s credibility, which was not appropriate criterion. Board failed to consider value of applicant’s evidence independently from that of mother. Board’s approach did not involve consideration of applicant’s testimony on its own terms. Board failed to address possibility that mother might be perceived to be lesbian and that applicant might suffer adverse consequences in overly homophobic country of St. Lucia. Board’s decision was unreasonable.
Corneille (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration) (Sep. 19, 2014, F.C., James W. O’Reilly J., File No. IMM-3510-13) 245 A.C.W.S. (3d) 180.

Administrative Law

JUDICIAL REVIEW

Evidence not properly considered in its totality and decision unreasonable

Sponsor was Canadian citizen. Sponsor’s spouse was citizen of India. Marriage was arranged by families and took place in December 2009, two days after parties met. Spouse applied for permanent residence however application was rejected by officer on basis that marriage was not genuine and was entered into primarily for purpose of acquiring permanent residence in Canada contrary to s. 4(1) of Immigration and Refugee Protection Regulations (Can.). Appeal was rejected by Immigration Appeal Division (IAD) in June 2011. Sponsor gave birth to child in June 2012, which was confirmed by genetic testing to be that of spouse, sponsor and spouse were in daily contact by Skype, sponsor had travelled to India for two trips of several months duration and was planning to travel for five month trip to India. Spouse applied for permanent residence again in November 2011, and application was again refused on ground first decision was final and conclusive and application was res judicata.  Despite via voce evidence of spouses on second appeal. IAD dismissed second appeal on basis that matter was res judicata or, in alternative, that marriage was entered into for primary purpose of acquiring status under Immigration and Refugee Protection Act. Sponsor applied for judicial review. Application granted. In adopting reasoning of previous decision, IAD did not address viva voce evidence of parties at second appeal.  Nor did IAD address new, fresh evidence adduced by sponsor beyond stating it had considered all evidence before it. No analysis was provided although  there was clear evidence that might alter outcome if properly considered in its totality i.e. evidence of continuing relationship, two to three trips to India of several months in duration, and birth of  child. While IAD had discretion to decide evidence put forward did not amount to decisive evidence, type of evidence adduced in this matter has been held to be fresh, decisive evidence in previous judicial reviews of spousal-sponsorship applications. IAD was obliged to address why it did not constitute such evidence in present case beyond simply adopting reasons of previous panel. Failure to do so indicated that evidence was not properly considered in its totality and decision of IAD was unreasonable.
Sandhu v. Canada (Minister of Citizenship and Immigration) (Sep. 2, 2014, F.C., Luc Martineau J., File No. IMM-1309-14) 245 A.C.W.S. (3d) 188.

Aboriginal Peoples

SELF-GOVERNMENT
Appeal tribunal usurped its role to observe and oversee election
In 2010 applicant was candidate for chief and he lost election by two votes. Appeal tribunal dismissed applicant’s appeal but judge allowed application for judicial review. Second election was to be held in March 2013 and applicant was again candidate for chief. On date of election chief electoral officer posted notice that indicated that applicant owed Band money and was disqualified from being candidate in election. All votes cast for applicant were placed in envelope and marked as disqualified. Applicants appealed. Appeal tribunal upheld decision to disqualify applicant and dismissed appeal. Applicants applied for judicial review of appeal tribunal’s decision. Application granted. Appeal tribunal usurped its role according to Sturgeon Lake First Nations Election Act, 2009 and it usurped its role according to custom to observe and oversee election. Appeal tribunal actively participated in decision to disqualify F as candidate in election. Appeal tribunal did not merely observe and oversee election. Informed person could reach no other conclusion than that there was reasonable apprehension of bias. Appeal tribunal violated procedural fairness and decision was quashed on that basis. Matter was remitted to appeal tribunal for re-determination.
Felix v. Sturgeon Lake First Nation (Sep. 23, 2014, F.C., Catherine M. Kane J., File No. T-927-13) 244 A.C.W.S. (3d) 754.
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