CONSULTANTS

Egregious conduct by immigration consultant led to breach of fairness

Applicant came to Canada as farm worker on temporary foreign worker program. Applicant returned to country of origin. Applicant returned to Canada on visa and overstayed visa. Immigration consultant indicated immigration consultant was lawyer and had applicant sign blank forms. Immigration consultant called applicant once only to advise about requirements of pre-removal risk assessment application (“PRRA”). Immigration consultant told applicant it was not necessary to obtain supporting documents. Immigration consultant never showed applicant completed copy of PRRA. Applicant received negative PRRA. Officer determined applicant provided insufficient evidence to establish risk asserted. Officer found it unreasonable for applicant not to make refugee claim while applicant was on valid work permit. Officer found it unreasonable for applicant not to have submitted any supporting documentation. Application for judicial review was allowed. Facts of case presented egregious conduct by immigration consultant that led to breach of procedural fairness. Immigration consultant lacked any degree of professionalism and competence when it came to preparing applicant’s PRRA. PRRA package submitted by immigration consultant was woefully inadequate. Not to allow applicant fair chance to have case assessed would be offensive to Canadian values.
Brown v. Canada (Minister of Citizenship and Immigration) (Nov. 8, 2012, F.C., James Russell J., File No. IMM-3364-12) 224 A.C.W.S. (3d) 427.

JUDICIAL REVIEW

Standard of review of tribunal’s interpretation of “family status” was reasonable

Complainant, who worked as border services officer on rotating shifts, filed complaint alleging discrimination in employment on basis of family status. Complainant alleged Canadian Border Services Agency (“CBSA”) discriminated by limiting fixed day shifts to part-time employment and complainant, who required fixed day shifts to arrange childcare, not eligible for benefits available to full-time employees. At time of Canadian Human Rights Tribunal hearing, complainant on unpaid leave, intending to return to full-time work when children reached school age. Tribunal found complainant proved prima facie employment discrimination and CBSA did not prove hardship. Tribunal held family status should be interpreted broadly, including needs and obligations naturally flowing from identifying one as parent, including parental childcare responsibilities. Tribunal ordered CBSA to cease discriminatory practices and that complainant be compensated for lost wages and benefits. Attorney General of Canada’s application for judicial review dismissed except in relation to certain remedial orders. Standard of review of tribunal’s interpretation of “family status” in Canadian Human Rights Act reasonableness. While Tribunal interpreting home statute and adjudicating within area of expertise, question did not relate to jurisdictional boundaries nor did interpretation raise constitutional question. Standard of review applicable to tribunal’s finding of prima facie discrimination and remedial orders reasonableness as these matters involved questions of mixed law and fact.
Johnstone v. Canada (Border Services Agency) (Jan. 31, 2013, F.C., Mandamin J., File No. T-1418-10) 223 A.C.W.S. (3d) 1003.

JURISDICTION

Only foreign nationals could be targeted when CSIS exercising warrant powers

Canadian Security Intelligence Service (“CSIS”) applied for warrants pursuant to ss. 16 and 21 of Canadian Security Intelligence Services Act. Issue raised was whether Federal Court has power to issue warrants, pursuant to ss. 16 and 21 of Act, authorizing CSIS to intercept communications of or utilize other intrusive investigative techniques in relation to Canadian citizen, permanent resident or corporation. Section 16(1) of Act provides that CSIS may assist Minister of National Defence or Minister of Foreign Affairs in collection of intelligence relating to activities of “(a) any foreign state or group of foreign states; or (b) any person other than (i) a Canadian citizen (ii) a permanent resident ..., or (iii) a corporation incorporated by or under an Act of Parliament or of the legislature of a province”. Section 16(2) states “assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii)”. Application included request for assistance in collection of intelligence relating to foreign state(s), corporation or person and included but operative portions of warrants referred specifically to interception of communication of certain named Canadian citizens, permanent residents or corporations. CSIS argued that s. 16(2) of Act does not preclude naming of Canadian citizen, permanent resident or corporation whose communications may be intercepted in warrant so long as request for assistance directed at foreign state(s), corporation or person. Application for warrants dismissed. Degree of potential intrusion on privacy interest of individual named in Part III of warrant, which permits intentional interception, significantly greater than potential intrusion on rights of those whose communications may only be incidentally intercepted. Special Senate Committee Report indicated clear understanding that while requests for assistance could be made to obtain foreign intelligence, “only foreign nationals could be targeted” when CSIS exercising warrant powers in relation to s. 16 request. Section 16(2) specifically seeks to prohibit obtaining assistance in relation to activities of foreign state(s), corporation or person, by targeting intrusive investigative techniques aimed at Canadian citizens, permanent residents or corporations.
Canadian Security Intelligence Service (Re) (Dec. 6, 2012, F.C., Mactavish J.) 223 A.C.W.S. (3d) 959.

OPINION EVIDENCE

Expert’s credibility affected by close personal relationship with taxpayer

Ruling on admissibility of expert evidence. Taxpayer received shares in company from her spouse. Minister of National Revenue initially determined fair market value of these shares to be $708,155 for purposes of s. 160(1)(e) of Income Tax Act (Can.). Taxpayer requested reassessment. Minister determined fair market value of shares transferred for no consideration to be $546,835. Taxpayer appealed and called expert witness to opine on whether selling large blocks of shares affected share price. Expert had been self-employed as corporate development and investor relations consultant for 27 years. Evidence inadmissible. Expert was not credible witness, and for this reason alone his evidence was given no weight. Further, expert lacked expertise and impartiality required to provide court with opinion on fair market value of shares. Expert’s credibility was affected by close personal relationship with taxpayer and her spouse as well as expert’s failure to be forthcoming in his testimony. Expert lacked expertise in valuation since his services were in realm of corporate development and dealing with investors in client companies. Expert was not chartered business valuator, chartered accountant, chartered financial analyst, or certified general accountant. Expert had not even taken any valuation courses. Expert’s experience had not caused him to acquire skills of valuator. Expert’s objectivity was affected by fact that he was close friends with taxpayer’s spouse. Great deal of expert’s testimony was in nature of advocacy.
Shulkov v. Canada (Dec. 31, 2012, T.C.C., D’Arcy J., File No. 2008-1842(IT)G) 223 A.C.W.S. (3d) 896.

JURISDICTION

Federal Court had jurisdiction to review decisions of First Nation councils

Application by member of First Nation for declaration that one resolution prepared by First Nation was void ab initio and for order quashing second resolution passed by First Nation’s band council purporting to ratify first resolution. First Nation wanted provincial hydro company to pay present value of sum payable over 17 years. First Nation prepared first resolution formally approving receipt of accelerated lump sum payment and authorizing First Nation to provide full and final release. First resolution and release were signed by chief and four band councillors. Hydro company made lump sum payment. Band council subsequently passed second resolution ratifying first resolution. Application dismissed on other grounds. Federal Court had jurisdiction to hear matter. First Nation was “federal board, commission or other tribunal” that had exercised or purported to exercise jurisdiction or powers encompassed by s. 18.1 of Federal Courts Act (Can.). Jurisprudence held Federal Court had jurisdiction to judicially review decisions of custom First Nation councils and related agencies. Band council’s decisions had not been “private law” decisions. First Nation derived its jurisdiction from both federal common law of aboriginal rights and its capacity to exercise federal statutory powers conferred on council of Indian band by federal Indian Act (Can.). Nature of jurisdiction exercised by band council was in relation to governance of First Nation and was matter of public interest given history that had led to entitlement to payments. Application had been brought in timely manner after second resolution had been passed to ratify first resolution.
Gamblin v. Norway House Cree Nation Band Council (Dec. 20, 2012, F.C., Mandamin J., File No. T-434-06) 223 A.C.W.S. (3d) 807.

APPEAL

Inadequacy of reasons was significant flaw

Appeal by Minister of Citizenship and Immigration from decision of citizenship judge, granting respondent citizenship. Respondent was citizen of Iran who entered Canada and was landed as permanent resident. He applied for citizenship on May 10, 2008. Relevant period for calculating his residence in Canada was May 10, 2004 to May 10, 2008. Respondent appeared before citizenship judge on October 11, 2011. After hearing respondent submitted additional evidence relevant to period at issue, including pay stubs, college transcripts and attestation of participation in language training program. Citizenship judge approved application, finding applicant met criteria as defined in Koo (Re) (1992), 37 A.C.W.S. (3d) 435 (F.C. T.D.). Issue whether citizenship judge erred in finding that respondent met residence requirement set out in s. 5(1)(c) of Citizenship Act (Can.). Applicant contended that citizenship judge who chooses to apply reasoning in Koo must make it clear that all relevant factors were addressed in reaching decision and that judge erred by not mentioning which factors of Koo test were relevant to his decision. Applicant further contended that three Koo factors required citizenship judge to determine when respondent was physically present in Canada during relevant period and that citizenship judge erred by not doing so. Application granted. Inadequacy of reasons was significant flaw that contributed to unreasonableness of citizenship judge’s decision. Reasons in case at bar were only one paragraph long. Decision stated that application was approved on basis of Koo criteria and that parts of requested documentation submitted by respondent after hearing were satisfactory. There was no explanation as to which documents satisfied citizenship judge or why documents he received subsequent to hearing responded to his concerns. All six factors from Koo did not need to be explicitly reviewed and analyzed by citizenship judge, but at very least he had to address Koo factors which were relevant to his decision. It was far from clear how citizenship judge arrived at his decision to approve respondent’s citizenship application based on evidence before him. Decision of citizenship judge was unreasonable.
Canada (Minister of Citizenship and Immigration) v. Ayatizadeh (Dec. 19, 2012, F.C., Tremblay-Lamer J., File No. T-2111-11) 223 A.C.W.S. (3d) 315.