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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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Board failed to apply facts of crime to Canadian criminal law

Respondent was found to be refugee. Respondent was found not to be excluded despite lengthy record of criminal convictions in United States. Minister’s application for judicial review was allowed. Board failed to apply principles set out in case law. Board failed to apply facts of crime to Canadian criminal law. Board looked for equivalent criminal provisions to those of United States offences. Board erred in consideration of contextual matters. Finding on issue of well-founded fear was unduly brief and did not touch on credibility. Reasons were not adequate.

Canada (Minister of Citizenship and Immigration) v. Diaz
(June 21, 2011, F.C., Phelan J., File No. IMM-4878-10) 204 A.C.W.S. (3d) 125 (8 pp.).

Human Rights Legislation


Applicant did not present persuasive evidence employer’s explanation mere pretext for discrimination

Employer screened applicant out of two job competitions for indeterminate position as customs inspector. Applicant claimed employer discriminated against applicant on grounds of race and ethnic origin. Applicant argued employer’s conduct was pretext for discrimination. Tribunal dismissed complaint after hearing. Tribunal made assumption applicant presented prima facie case of discrimination. Tribunal found employer’s explanation to be reasonable. Tribunal found applicant did not present persuasive evidence employer’s explanation was mere pretext for discrimination. Application for judicial review was dismissed. Tribunal stated correct legal test and applied relevant legal principles correctly. Tribunal’s treatment of evidence was not unreasonable. Applicant sought to reweigh evidence. Tribunal did not err in treatment of evidence. Tribunal’s conclusion was not unreasonable based on evidence. Tribunal’s reasons were adequate.

Turner v. Canada (Attorney General) (June 24, 2011, F.C., O’Reilly J., File No. T-1094-10) 204 A.C.W.S. (3d) 121 (17 pp.).



Non-imposition of duration of condition should be interpreted as imposed throughout duration of parole

Petitioner sought revision of decision of board that imposed conditions for release on parole. Petitioner was sentenced to eight years in jail for four counts of sexual assault on victims aged six to nineteen. Petitioner claimed that residence assignment was incompatible with his history and that board failed to establish duration of condition. Application not allowed. Court affirmed that conditions imposed were compatible with gravity of crime committed, age of victims and his attitude to minimize conduct. Court ruled that non-imposition of duration of condition was allowed with jurisprudence and should be interpreted as imposed throughout duration of parole.

Ross v. Canada (Procureur general) (July 6, 2011, F.C., Scott J., File No. T-1954-10) Reasons in French. 95 W.C.B. (2d) 517 (18 pp.).



Board under obligation to explain why it had ignored evidence which corroborated applicants’ allegations

Applicants were a family from Mexico. Father had filed complaint against two police officers in Mexico who he claimed had threatened him and attempted to murder him. One of the police officers then raped his daughter. Family fled to Canada. Refugee claim was dismissed as it was found that they had internal flight alternative. Applicants brought present application for judicial review. Application allowed. Board failed to explain why it did not accept the pertinent evidence which fully supported the applicants’ arguments. Board was under an obligation to explain why it had ignored evidence which corroborated the applicants’ allegations. This omission constituted reviewable error.

Yanez v. Canada (Minister of Citizenship and Immigration)
(July 4, 2011, F.C., Lemieux J., File No. IMM-5539-10) Reasons in French. 203 A.C.W.S. (3d) 815 (6 pp.).



Citizenship judge failed to indicate method and criterion used

Appellant sought revision of decision that granted citizenship to respondent. Appellant claimed that judge erred in considering that respondent fulfilled his obligation of residence. Appeal allowed. Court affirmed that citizenship judge failed to indicate method and criterion used to determine whether respondent had fulfilled obligation to reside. Court reversed decision on the grounds that decision was not sufficiently motivated and lacked transparency.

Canada (Ministre de la Citoyennete et de L’immigration) v. Baron
(Apr. 20, 2011, F.C., Bedard J., File No. T-1500-10) Reasons in French. 203 A.C.W.S. (3d) 14 (12 pp.).

Human Rights Legislation


Employee failed to establish either incompetence or miscarriage of justice

Application by employee for judicial review of decision of Canadian Human Rights Tribunal awarding employee modest damages and costs. Employee was federal civil servant who applied for administrative position with Royal Canadian Mounted Police (“RCMP”). Employee was initially told she was successful candidate. Employee authorized RCMP to access her personnel leave file, which documented significant leave due to two motor vehicle accidents. Employee was then informed she was no longer being considered for position. Employee suffered panic attack and went on long-term disability. Employee filed complaint of discrimination. RCMP admitted liability and offered employee position. Employee accepted position and was awarded $4,000 for damages plus $5,814 for costs. Application dismissed. Employee failed to establish any reviewable errors. Allegation that tribunal unreasonably refused to postpone hearing could not be considered due to lack of evidence. Employee could have brought motion for order compelling tribunal to produce transcript but failed to do so. Tribunal had not erred in focusing on remedy rather than conducting complete hearing. Employee had not raised any concerns at hearing while represented by counsel. More importantly, RCMP had admitted liability so there was no need to address liability. Employee provided no evidence in support of allegation that her counsel was incompetent. Employee failed to establish either incompetence or miscarriage of justice. Tribunal provided clear and intelligible reasons for its assessment of damages and its decision was reasonable.

Berberi v. Canada (Human Rights Tribunal) (Apr. 21, 2011, F.C., Heneghan J., File No. T-1433-09) 203 A.C.W.S. (3d) 143 (22 pp.).



Accused not a danger to public and therefore detention unnecessary

Petitioner sought revision of decision that granted release from custody of accused. Accused was permanent resident in Canada and was facing proceedings on inadmissibility following condemnation on several counts of sexual assault, assault with weapon, causing bodily harm and threatening to cause death. Victim was ex-wife of accused. Petitioner claimed that decision failed to assess danger to public of accused and risk of evasion, accentuated by imminent decision on inadmissibility. Application not allowed. Court affirmed that accused was co-operative with authorities and underwent several sessions on anger management. Court affirmed that decision was supported by facts and took into account all aspects of file of accused concluding that he was not a danger to public and therefore his detention was unnecessary.

Canada (Ministre de la Securite Publique et de la Protection Civile) v. Sall
(June 13, 2011, F.C., de Montigny J., File No. IMM-3081-11) Reasons in French. 95 W.C.B. (2d) 400 (26 pp.).
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