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Immigration and Citizenship

Refugee protection

Appeal or redetermination of claim

Findings of Refugee Appeal Division denying application for judicial review entitled to deference

Applicant, citizen of Kyrgyzstan, claimed refugee protection based on fear of violence from state and non-state extortionists that had resulted in him being beaten and hospitalized three times. Refugee Protection Division (RPD) found applicant’s story was not credible and rejected claim. Applicant appealed, submitting new evidence consisting of letter from witness to, and hospital records arising from, attack on wife and son. Refugee Appeal Division (RAD) found evidence did not raise serious issue as to credibility, denied oral hearing and affirmed decision of RPD. On application for judicial review, court found RAD had erred in its assessment of evidence by focusing on what it did not as opposed to what it did say and ordered redetermination before different panel. Second panel of RAD found new evidence was not credible, denied oral hearing and again affirmed decision of RPD. Applicant brought further application for judicial review. Application dismissed. RAD’s findings in regard to new evidence, including with respect to credibility, were entitled to significant deference. Such findings were not reached in vacuum but on totality of evidence which, in this case, included admittedly fraudulent claim made abroad. RAD’s findings were reasonable in circumstances and rendered decision with respect to oral hearing reasonable.
Belek v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 649, 2017 FC 196, Alan S. Diner J. (F.C.).

Public Law

Social programs
Employment insurance

Applicant retiring early to retain benefits not voluntarily leaving employment without just cause

Applicant’s employer gave notice of its intent to discontinue health and dental insurance benefits for new retirees and advised her that she had to retire by specified date to retain her retirement coverage. Applicant retired. Applicant’s application for employment insurance benefits was denied. Social Security Tribunal General Division (SST-GD) held that applicant voluntarily left her employment without just cause within meaning of ss. 29 and 30 of Employment Insurance Act. Applicant’s appeal was allowed by Social Security Tribunal Appeal Division (SST-AD). Crown applied for judicial review. Application dismissed. SST-AD’s decision was not unreasonable, as it fully explained basis for its determination that applicant’s need to maintain coverage for herself and husband provided just cause for retiring and that roll back of coverage was akin to significant modification in wages or salary. Result reached was not unjustified as there was reasonable basis for conclusion that SST-GD made reviewable error in failing to properly apply applicable test under ss. 29 or 30 of Act to applicant’s situation. Given multiple medications required by applicant and husband as well as their significant dental needs, conclusion was not unreasonable. SST-AD was not required to refer to cases cited by Crown as determination of just cause was largely fact-specific inquiry and SST-AD applied correct law. On facts of applicant’s case, result reached by SST-AD was not unreasonable.
Canada (Attorney General) v. Hong (2017), 2017 CarswellNat 718, 2017 FCA 46, Stratas J.A., Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.).

Civil Practice and Procedure

Parties

Vexatious proceedings / Abuse of process

Respondent declared vexatious litigant

Applicants applied for order declaring respondent AO vexatious litigant under section 40 of Federal Courts Act. Application allowed. AO was declared vexatious litigant. He was not to institute new proceedings, whether acting for himself or having his interests represented by another individual Court, except by leave of Court. In roughly three years, AO has brought at least 47 matters in various courts. In this court, he had brought 18, most of which have been dismissed summarily. As for those not dismissed, pleadings, motions and affidavits contained many scandalous and irrelevant allegations and it was not possible to see any merit in them. AO flouted directions and orders of court.
Canada v. Olumide (2017), 2017 CarswellNat 610, 2017 FCA 42, David Stratas J.A. (F.C.A.).

Criminal Law

Charter of Rights and Freedoms

Other Charter issues

Discoverability doctrine not dispositive of analysis required by Charter s. 24(2)

Nexus between impugned evidence and Charter breach. Police detained accused driver at roadside as suspect in recent hit-and-run accident. While accused was being detained, police smelled alcohol on his breath, which led to accused being tested on approved screening device and then on breathalyzer. Trial judge convicted accused of driving “over 80”. Trial judge found that accused’s right to counsel was breached at roadside, but she declined to exclude breath results pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms (Charter). Trial judge found that “nothing materially flowed” from breach of accused’s right to counsel (“nothing flowed finding”). Accused appealed. Appeal allowed; accused acquitted. Trial judge committed error in law by failing to conduct three-prong analysis required by s. 24(2) of Charter (Grant analysis). “Nothing flowed finding” did not constitute Grant analysis. “Nothing flowed finding” expressed view that breath results were not “obtained in a manner“ that infringed accused’s rights because breath results were unconnected to Charter breaches. In case at bar, there were, at minimum, clear contextual and temporal connections between breath samples and Charter breaches. If accused had been afforded right to counsel immediately upon detention, he might have said nothing, in which case alcohol might not have been detected on his breath. “Nothing flowed finding” did not constitute Grant analysis based on discoverability doctrine. Discoverability doctrine cannot be dispositive of Grant analysis, as it is only factor to be taken into account under second prong of Grant analysis.
R. v. Lima (2017), 2017 CarswellOnt 5113, 2017 ONSC 2224, Fairburn J. (Ont. S.C.J.).

Criminal Law

Charter of Rights and Freedoms

Notice of constitutional question

Crown bound by declaration that Criminal Code s. 151 unconstitutional

Accused was charged with sexual interference. Defence initially indicated that it would be challenging constitutionality of mandatory minimum sentence imposed for convictions on this charge but then relied upon case that held that minimum sentence under s. 151 of Criminal Code was unconstitutional and of no force and effect. Crown sought order of Mandamus requiring defence to file and serve Notice of Constitutional Question on Attorney Generals of Canada and Ontario, to allow it to defend constitutionality of mandatory minimum jail sentence of one year for offence of sexual interference under s. 151 of Criminal Code. Application dismissed. Court agreed with Crown’s enunciation of principles of stare decisis, namely that judge is not bound by decision of another judge of same court on same issue. Decision by judge of court of concurrent jurisdiction is of persuasive value only but such judgment should be followed unless subsequent judge is satisfied that it was plainly wrong. Crown was bound by declaration made by Superior Court judge, with inherent jurisdiction, that section of Criminal Code was unconstitutional, was of no force and effect, and was effectively removed from statute books, where notice of constitutional question was properly served on Attorney Generals of Canada and of Ontario. Declaration under s. 52 of Constitution Act that section of law is unconstitutional is not limited to proceeding before court. Court agreed with submission by defence that once declaration is made by judge with inherent jurisdiction that law contravenes Constitution offending section ceases to exist and is of no force and effect. Crown’s only remedy was to appeal first Superior Court judge’s declaration that section of Criminal Code was unconstitutional.
R. v. S. (J.D.) (2017), 2017 CarswellOnt 4800, 2017 ONSC 1869, R. Smith J. (Ont. S.C.J.).

Civil Practice and Procedure

Costs

Particular orders as to costs


Court proceeding, reopened on basis of fraudulent document, attracting significant costs award

Respondent Chief Building Officer revoked building permit issued for construction on appellant’s property (“revocation order”). Appellant appealed revocation order to Superior Court. Appeal was dismissed. Parties made submissions as to costs. Respondents submitted that appellant had provided fraudulent document (“Exhibit H”) in support of his motion to reopen appeal and had caused respondents considerable time and expense in effort to determine whether Exhibit H was authentic document; and accused respondents of conspiring to hide true zoning for appellant’s property. Respondents awarded full indemnity costs of in amount of $50,976.96. Respondents were most successful party. It could not have been outside reasonable expectation of appellant that court proceeding, reopened on basis of fraudulent document, would attract significant cost award. Hours charged and rates set out by respondents, relative to circumstances of this case and counsel’s year of call, were fair and reasonable. In this case, there had been fraud and unproven allegations of conspiracy: impact of authentic Exhibit H were used to buttress argument for reopening appeal and was important factor in court’s decision to reopen appeal. Reasonable conclusion was that failure to consider new document that could resolve dispute would constitute miscarriage of justice. After applying factors in R. 57.01(1) of Rules of Civil Procedure to this case and noting egregious nature of appellant’s conduct, elevated cost awarded was fair and reasonable in all circumstances of this case. This was not case where cost award would adversely impact on access to justice issues. On contrary, elevated cost award was necessary to deter appellant from using court system to adjudicate frivolous claims.
Elbasiouni v. Brampton (City) (2017), 2017 CarswellOnt 4876, 2017 ONSC 2088, Barnes J. (Ont. S.C.J.); additional reasons (2015), 2015 CarswellOnt 15057, 2015 ONSC 6149, Barnes J. (Ont. S.C.J.).

Alternative Dispute Resolution

Judicial review of arbitration awards

Grounds for review

Arbitrator’s breach of obligation to treat party fairly constituting breach of natural justice

Parties signed minutes of settlement resolving issue of child support for two children. Parties agreed to submit subsequent dispute about retroactive and prospective child support to arbitration. Eight days before arbitration hearing was scheduled, father dismissed lawyer. Arbitrator refused father’s request for adjournment, and father attended arbitration hearing without lawyer. Father applied for judicial review, seeking to have arbitration award set aside. Application granted. Arbitrator considered father’s request for adjournment but she did so in relation to whether he intended to appear at hearing and what consequences of not appearing could be, and there was nothing that showed that arbitrator considered father’s actual reason for requesting adjournment, that he wanted opportunity to obtain new counsel. Arbitrator appeared not to have put her mind to whether father was honestly seeking to exercise his right to counsel or whether he was manipulating system to orchestrate delay. This was not case where father had gone though number of lawyers, and there was no logical benefit to him in delaying matter. Father’s request for adjournment was extremely timely. Based on evidence, it seemed clear father was honestly seeking his right to legal counsel and he was denied opportunity. Consequences of hearing were serious and father was prejudiced by refusal to grant adjournment, while there was no evidence that mother would have been prejudiced by adjournment. In circumstances father was not treated equally and fairly by arbitrator, and he was not given opportunity to present his case or respond to mother’s case. Arbitrator did not balance interests of mother to get on with hearing with interests of father to exercise his right to counsel or with interests of administration of justice to ensure matter was decided on its substantive merits and that justice was not only done but was seen to be one. Breach of obligation to treat father fairly and equally pursuant to s. 19 of Arbitration Act constituted breach of natural justice, arbitration award must be set aside, and parties were to submit dispute to different arbitrator.
Lockman v. Rancourt (2017), 2017 CarswellOnt 5118, 2017 ONSC 2274, Tracy Engelking J. (Ont. S.C.J.).

Criminal Law

Sentencing

Types of sentence

Parole Board not required to balance Charter values

In November 2014, Board received information from Intelligence Unit of Niagara Regional Police Service that VB had been charged with offences pursuant to Controlled Drugs and Substances Act (“CDSA”) and Criminal Code. Board subsequently revoked pardon pursuant to section 7 of Criminal Records Act (“CRA”). VB brought application seeking judicial review of October 27, 2015 decision by Parole Board of Canada (“Board”) made pursuant to CRA to revoke pardon he was previously granted in 2008. Application dismissed. Board’s decision was reasonable. Board was not required to conduct balancing of Charter interests or values implicated in revocation of pardon with statutory objectives of CRA in absence of any such submissions to the Board from VB. Board was not, in circumstances of case, required to proactively conduct such balancing exercise. Board did not err in applying statutory provisions and exercising its discretion to revoke VB’s pardon based on information it relied on to determine that VB no longer met good conduct criteria.
Buffone v. Canada (Attorney General) (2017), 2017 CarswellNat 1308, 2017 FC 346, Catherine M. Kane J. (F.C.).

Tax

Goods and Services Tax

Input tax credits

Company not entitled to input tax credits after using false invoices to support claim

Company was registrant for purposes of Part IX of Excise Tax Act and operated or claimed to operate gold-trading business consisting essentially in acquiring scrap gold for resale to refiner. During relevant period (April to November 2012), company reported goods and services tax (GST) it collected from its sole client from sale of used gold jewellery and impure gold bars (scrap gold). Minister made assessment under Act during relevant period, denying company claimed input tax credits (ITCs) of $994,730.97. Company’s claim for ITCs was denied on grounds that company did not trade in gold, or alternatively, that it acquired gold from persons other than alleged suppliers listed on its purchase invoices. Minister alleged company knowingly, acting with wilful blindness, participated in false invoicing scheme that allowed clandestine suppliers of gold to sell their gold for cash, which afforded company opportunity to purchase its gold at substantial discount in relation to its market value. Minister also contended that purchase invoices produced as part of company’s documentary evidence did not satisfy requirements set out in paragraph 169(4)(a) of Act and s. 3 of Input Tax Credit Information (GST/HST) Regulations because they did not identify company’s true suppliers. Company’s appeal was dismissed by Tax Court of Canada (TCC). TCC concluded company was not entitled to input tax credits claimed for its purchases of gold during period because: invoices company relied on to support its claim were false; and company used these invoices to knowingly mask identity of its true suppliers. Company appealed. Appeal dismissed. Appeal could not success on issue of burden of proof as it was non-issue. TCC had sufficient evidence to conclude as it did. It did not, therefore, commit any error justifying intervention.
TricomCanada Inc. v. R. (2017), 2017 CarswellNat 1979, 2017 CarswellNat 1980, 2017 FCA 95, 2017 CAF 95, Nadon J.A., Johanne Gauthier J.A., and Trudel J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 1193, 2016 CarswellNat 46, 2016 TCC 8, 2016 CCI 8, Robert J. Hogan J. (T.C.C. [General Procedure]).

Criminal Law

Charter of Rights and Freedoms

Right to be tried within reasonable time [s. 11(b)]

Crown appeal from stay of proceedings based on pre-charge delay dismissed.

Crown’s appeal from decision granting accused stay of proceedings based on pre-charge delay was dismissed. Crown appealed. Appeal allowed. Majority agreed substantially with dissenting reasons of appellate level.
R. v. Hunt (2017), 2017 CarswellNfld 171, 2017 CarswellNfld 172, 2017 SCC 25, 2017 CSC 25, Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellNfld 425, 2016 NLCA 61, B.G. Welsh J.A., M.H. Rowe J.A., and L.R. Hoegg J.A. (N.L. C.A.).
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