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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

PERSON IN NEED OF PROTECTION

No information to suggest police not making genuine and earnest efforts to investgate

Application for judicial review of denial of refugee claim. Applicants were citizens of Mexico who alleged fear of loan shark, who was associated with criminal organization. Principal applicant had borrowed money from loan shark then could not repay. Applicant alleged that he was beaten by loan shark and attempt was made to kidnap his daughter. Principal applicant and his family moved to different locations in Mexico and made complaints to police. Applicant’s wife, did call police but did not remain to give a report and did not make any further attempts to follow up with police. Applicants fled to Canada and sought refugee protection. Member concluded that applicants had not rebutted presumption of state protection as documentary evidence indicated that issues of corruption and deficiencies were being addressed by the state of Mexico. Member also concluded that there was no information to suggest that police were not making genuine and earnest efforts to investigate claimant’s allegations and apprehend claimant’s perpetrator. Claimant’s choice to leave Mexico may have resulted in investigation being delayed or abandoned, given that he, as victim, was key witness. Member also concluded that as wife called police but did not remain to give report and did not make any further attempts to follow up with police, she had demonstrated only merest attempt to avail herself of protection of police and without further contact police would be helpless in rendering support. Wife’s actions did not support contention of lack of state protection. Application dismissed. Member had made no palpable or overriding error in reaching conclusion that there was adequate state protection. As to whether the applicants made sufficient efforts to avail themselves of state protection, findings of member were not unreasonable.

Lechuga v. Canada
(Minister of Citizenship and Immigration) (July 20, 2011, F.C., Hughes J., File No. IMM-474-11) 205 A.C.W.S. (3d) 817 (6 pp.).

Administrative Law

FREEDOM OF INFORMATION

Discretion not exercised in reasonable manner

This was application pursuant to s. 41 of Access to Information Act (Can.), to review decision of Library and Archives Canada (LAC). Applicant was journalist and he sought information on Canadian politician. LAC refused to disclose portions of R.C.M.P.’s dossier on politician based on s. 15 of Act, national security exemption. Applicant made formal complaint to Information Commissioner but commissioner found that applicant’s complaint was not justified. Application granted. There was two-step approach to analysis and review of claimed exemptions under s. 15 of Act. Court reviewing refusals of disclosure under discretionary exemptions were to review: whether documents fell within exemption claimed; and whether discretion was exercised properly. Reasonable expectation of probable harm was to be shown. Injury-based determination that must be undertaken by court must balance aims of Act and objectives, namely, that exemptions were to be interpreted restrictively. Information that was withheld from applicant was done in manner that ran counter to principles of Act and LAC’s mandate. LAC failed to exercise residual discretion once documents had been seen to be covered by s. 15 exemption. On balance of probabilities, court was not satisfied that discretion was exercised and if discretion was exercised it was not exercised in reasonable manner. Matter was set to LAC for re-determination.

Bronskill v. Canada (Minister of Canadian Heritage) (Aug. 11, 2011, F.C., Noel J., File No. T-1680-09) 205 A.C.W.S. (3d) 612 (108 pp.).

Immigration

EXCLUSION AND EXPULSION

Danger opinion remained valid despite overturning of conviction

Applicant was permanent resident. Applicant incurred extensive criminal record. Applicant was convicted of sexual assault of former spouse. Danger opinion was issued against applicant. Applicant was deported. Applicant re-entered Canada without approval of Minister and was charged with re-entering without permissions. Two inadmissibility reports were issued against applicant. Second deportation order was issued. Former spouse recanted allegations of sexual assault. At new trial sexual assault charges were dismissed. Danger opinion and first deportation order were already judicially reviewed. Applicant sought to quash danger opinion and two deportation orders. Application for judicial review was dismissed. Court was not in position to consider submission on res judicata given direction from Federal Court of Appeal and following its application by Justice. Danger opinion remained valid despite overturning of conviction for sexual assault. Danger opinion was based on three convictions. Danger opinion was not based on nullity. First deportation order was moot. Second deportation order was valid. Inadmissibility report and second deportation order were not to be quashed despite overturning of criminal conviction. Loss of permanent residence status was legal and there was no error in execution of deportation order. Section 326(2) of Immigration and Refugee Protection Regulations (Can.), remained in effect.

Pascale v. Canada (Minister of Citizenship and Immigration)
(July 13, 2011, F.C., O’Keefe J., File No. IMM-3127-10) 205 A.C.W.S. (3d) 500 (25 pp.).

Crown

ARMED FORCES

Course of action taken by board arrived at through fair process

Applicant failed three baseline exercises. Board determined applicant should cease geo tech training. Applicant successfully grieved and was given credit for qualification level 4. Applicant failed two performance objectives in qualification level 5. Board again recommended applicant cease geo tech training. Commanding officer ordered recommendation to be put into effect. Applicant’s grievance was dismissed. Applicant was found to have been treated fairly, reasonably and in accordance with Canadian Armed Forces policies and directives. Application for judicial review was dismissed. Applicant’s attempts at retest were not likely to be successful. Applicant simply disagreed with decision. Allegations that it was unfair in endorsing tainted earlier decision were nothing more than bald assertions. There was nothing that could be described as reviewable error based on unreasonableness or procedural fairness. Decision was reasonable. Course of action taken by board was within its jurisdiction and arrived at through fair process. Assertions applicant was deprived of opportunity to present case was unsubstantiated.

Syed v. Canada (Attorney General)
(July 29, 2011, F.C., Russell J., File No. T-1704-10) 205 A.C.W.S. (3d) 396 (21 pp.).

Administrative Law

NATURAL JUSTICE

Discovery of modified complaint form did not violate applicant’s right to natural justice

Adjudicator allowed complaint of unjust dismissal made by respondent and ordered respondent be compensated for loss of pay for period indicated in decision. Application for judicial review was dismissed. Adjudicator had jurisdiction to hear and decide complaint. None of jurisdictional challenges raised by applicant at hearing of complaint were justified. There was no breach of rules of natural justice or procedural fairness. Adjudicator rightly found that discovery of modified complaint form at hearing did not violate applicant’s right to natural justice and procedural fairness. Applicant was given adjournment. There was no evidence applicant suffered prejudice from admission of two complaint forms. Decision on merits was reasonable.

Burnt Church
(Esgenooopetitj) First Nation v. Bartibogue (July 11, 2011, F.C., Martineau J., File No. T-1006-10) 205 A.C.W.S. (3d) 9 (16 pp.).

Aboriginal Peoples

HUNTING AND FISHING RIGHTS

Premature to consider motion to strike out application prior to completion of record

Motion by Minister for order to strike out applicant’s application for judicial review of continuing course of conduct by Minister to issue salmon fishing licenses to First Nations communities under Economic Opportunities Fisheries program of Aboriginal Fisheries Strategy that permit them to sell fish they catch. Applicant was self-represented. Motion dismissed. It could not be said that application for judicial review clearly fell short of minimal threshold of being so bereft of any possibility of success that it should be struck out because case was without merit. It was premature to consider motion to strike out application prior to completion of record and clear identification of issues. Applicant’s submissions on current record were imprecise and variable.

Eidsvik v. Canada
(Minister of Fisheries and Oceans) (July 27, 2011, F.C., Mandamin J., File No. T-1352-10) 205 A.C.W.S. (3d) 1 (23 pp.).

Immigration

JUDICIAL REVIEW

Applicant was liable for his own failure

Applicant sought judicial review of decision of commissioner who denied applicant’s request to re-open his file applying for refugee status in Canada. Applicant had moved home and alleged that he had informed authorities of this. Despite move he accepted that he received some correspondence from Citizenship and Immigration Canada, but not notice of hearings which were also sent to his lawyer who had been relieved of his functions by court on grounds of being unable to communicate with client. Client eventually contacted lawyer 19 months later to know progress of his file. Application denied. Applicant demonstrated serious failures to remain abreast of proceedings and was cause of his own misfortune. Applicant was liable for his own failure and would receive pre-removal risk assessment where he could state his case against deportation.

Garcia v. Canada (Ministre de la Citoyennete et de L’immigration) (July 22, 2011, F.C., Harrington J., File No. IMM-6957-10) Reasons in French. 204 A.C.W.S. (3d) 872 (7 pp.).
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