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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 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.).



Unreasonable to find letter filed in support of reconsideration did not meet due diligence test

Applicant served in Regular Force of Canadian Forces. Applicant’s lumbar disc lesion was recognized as being result of service. Applicant underwent surgery. Applicant aggravated condition while trying to change position in bed. Applicant filed for disability benefits. Board found doctor’s medical opinion did not constitute credible evidence for purpose of granting disability award because of lack of reasoning and analysis on issue of causation. Appeal panel sitting in reconsideration did not admit doctor’s letter into evidence. Letter was filed as additional information in reply to appeal panel’s findings on insufficiency of reasons and vagueness of report. Application for judicial review was allowed. It was unreasonable to find letter filed in support of reconsideration did not meet due diligence test. Additional information could not have been filed before applicant learned of appeal panel’s criticism of expert. Letter provided precision sought that was essential to determinative issue.

Cossette v. Canada (Procureur General) (Apr. 14, 2011, F.C., Scott J., File No. T-1147-10) 203 A.C.W.S. (3d) 531 (16 pp.).
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