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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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Selection and Admission

No basis for amateur diagnosis as officer had no expertise in field of psychiatry

Foreign national, aged 26, was citizen of China who came to Canada on student visa in 2005 after her mother died. Foreign national suffered from mental illness, which according to psychiatrist could be controlled, but not cured. Between December 2008 and September 2010, foreign national was admitted to psychiatric wards on five occasions. Foreign national subsequently enrolled in college and was residing at home of senior official in psychiatric department of major Toronto hospital. In denying humanitarian and compassionate claim, officer found that foreign national’s psychotic depression/lapse was result of separation anxiety as consequence of travelling alone to new country and that it was reasonable that her psychosis would diminish when she was back in her native culture and language and among family and friends. Officer also found that China had sufficient medical resources reasonably available to foreign national to treat her mental illness. Foreign national applied for judicial review. Application granted. Immigration Officer made fatal error in coming to his own conclusions on source of foreign national’s psychiatric problems. It was determination made in absence of any evidence to support finding that source of psychiatric problems was culture shock of coming to Canada. There was no basis for amateur diagnosis as officer had no expertise in this field, and there was no medical evidence to support this diagnosis. Culture shock had exacerbated foreign national’s medical problems, but was not found to be root cause. Officer’s conclusion that return to China would be tantamount to cure was unsupported and bizarre. In considering evidence of mental health treatment in China, officer focused exclusively on services in Shanghai and Beijing and failed to link those few facilities identified with foreign national’s ability to access them from her home city.
Li v. Canada (Minister of Citizenship and Immigration) (Jun. 6, 2014, F.C., Michael L. Phelan J., File No. IMM-4109-13) 241 A.C.W.S. (3d) 430.

Immigration

REFUGEE STATUS

Panel did not consider operational reality of processes

Refugee claimant was citizen of Mongolia who claimed protection based on spousal abuse. Refugee Protection Division (RPD) found that claimant’s husband was convicted of criminal offence when in fact he had not been. While her husband had been taken away by police on three occasions, there was no evidence that he received criminal convictions as opposed to administrative detentions. Letter from police indicated that claimant’s husband was sentenced according to administrative law. Claimant’s testimony and documentary evidence indicated that recently enacted domestic violence law had been rarely if ever used. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domestic violence. RPD denied claim. Claimant applied for judicial review. Application granted; decision quashed and matter remitted back for new determination by different panel. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domestic violence. That articulation of legal test was error in law. RPD’s actual analysis of state protection focused on processes in place to deal with domestic violence. RPD did not consider efficacy or operational reality of those processes. RPD should have confronted fact that claimant had accessed all resources which RPD found were available to protect her and was still experiencing serious violence. Therefore, this decision could not be sustained.
Osor v. Canada (Minister of Citizenship and Immigration) (Jun. 4, 2014, F.C., Michael L. Phelan J., File No. IMM-2081-13) 241 A.C.W.S. (3d) 428.

Industrial and Intellectual Property

PATENTS

Applicant did not hold any patents and did not enjoy special patent rights

Applicant manufactured generic pharmaceuticals and was wholly owned subsidiary of company that owned patents. Board found applicant came within definition of “patentee” under Patent Act (Can.), and was subject to board oversight in respect of patented medicines and obligated to comply with Act and Regulations and file information that would allow board to determine whether it was charging excessive prices for medicines. Application for judicial review of board’s decision. Application granted. Relevant provisions were enacted out of concern patent holders could take undue advantage of monopolies to detriment of consumers. Applicant did not hold any patents and did not enjoy special patent rights. Applicant only entered market with parent’s authority once parent had already lost its exclusivity so did not enjoy monopoly. Board failed to consider French version of Act defined patentee narrowly and close to rights of patent holder. Constitutionality of legislation depended on close connection to patent protection, which fell under Federal jurisdiction, and potential undue exploitation by monopolies. Considering all facts, board’s conclusion was unreasonable. Amendments to Act that gave board control over prices of patented medicine did not alter basic purpose of legislation or expand board’s mandate so provisions themselves remained constitutional. Matter remitted back with direction board find applicant was not patentee.
Sandoz Canada Inc. v. Canada (Attorney General) (May. 27, 2014, F.C., James W. O’Reilly J., File No. T-1616-12) 241 A.C.W.S. (3d) 107.

Immigration

REFUGEE STATUS

Applicants faced risk more serious than that faced by average Honduran

Applicants were citizens of Honduras and they claimed they feared criminal gang. Applicants’ family owned prosperous clothing business and principal applicant owned two other businesses. Applicants claimed that they were repeatedly threatened by gang. Principal applicant’s wife was abducted at gun point. Police officer was involved. Applicants made claim for refugee protection. Board concluded that applicants, as victims of crime, did not fear persecution under one of convention grounds and claim under s. 96 of Immigration and Refugee Protection Act (Can.), failed. Board found that applicants did not face personalized risk under s. 97(1)(b) of Act since other citizens of Honduras who were economically successful faced threat of extortion. Applicants’ claim for refugee protection was refused. Applicants applied for judicial review. Application granted. It was crucial to conduct individualized inquiry as to nature of risk faced by applicants before determining whether risk was one that was prevalent or widespread in that country. It was not sufficient to conclude that risk of criminal activity encountered by person was generalized because population at large or important segment of population was subject to same risk. Instead of focusing on fact that wealthy people were frequently targeted by gang in Honduras, board should have looked to applicants’ particular situation. Applicants were not simply at risk of theft and extortion because they were successful, but were also repeatedly threatened, shot at and subject to kidnapping attempts. Applicants faced risk more serious than that faced by average Honduran. Board’s decision was unreasonable because it did not properly conduct required individualized inquiry.
X, Re (Jun. 5, 2014, F.C., Yves de Montigny J., File No. IMM-12628-12) 241 A.C.W.S. (3d) 188

Courts

JURISDICTION

Unclear what legal basis applicant relied upon in bringing application to court

Applicant purchased 114 properties between 2004 and 2013 as part of long standing effort to construct second span of Ambassador Bridge over Detroit River. In September 2013, respondent city issued repair orders in relation to 114 vacant properties as they had become blight on community. Applicant appealed those orders to Property Standards Committee. In October 2013, applicant filed application to Federal Court seeking declaration that, among other things, Ambassador Bridge was considered “federal undertaking”, and as such, was not subject to municipal by-laws. City brought motion to strike out notice of application on grounds that Federal Court did not have jurisdiction to hear application. Motion granted. It was plain and obvious that application lacked reasonable cause of action, and that it was bereft of any possibility of success. Applicant did not appear to be challenging any particular decision of city, Property Standards Committee, or any order of federal board, commission or other tribunal. Rather, it appeared to be simply seeking legal opinion regarding applicability of Act to Incorporate the Canadian Transit Company from court. Court did not have statutory authority to grant such remedy. It was equally unclear what legal basis applicant had relied upon in bringing application to court.
Canadian Transit Co. v. Windsor (City) (May. 21, 2014, F.C., Michel M.J. Shore J., File No. T-1699-13) 240 A.C.W.S. (3d) 875.

Citizenship

APPEAL

Judge did not raise discrepancy in declared absences with foreign national

Foreign national was stateless individual who was born in Kuwait and who became permanent resident of Canada on June 7, 2003. Foreign national applied for citizenship on August 8, 2008. Foreign national had interview before judge on April 18, 2013. Foreign national did not submit passport which covered period from September 10, 2004 to May 4, 2009, so that absences were not verifiable. Judge noted credibility concerns regarding discrepancy between absences listed on foreign national’s original application (354 days) and his residence questionnaire (34 days). Judge was not satisfied that foreign national had proven that he was physically present in Canada for 1,095 days during relevant period and denied application. Foreign national appealed. Appeal allowed; application referred back to another citizenship judge for re-determination. While judge’s decision was not unreasonable, decision hinged on negative credibility finding, based on discrepancy in declared absences, however judge did not raise this discrepancy with foreign national. Given necessary procedural fairness afforded to applicants in citizenship applications and centrality of this issue to foreign national’s claim, there had been breach of procedural fairness.
Abdou v. Canada (Minister of Citizenship and Immigration) (May. 26, 2014, F.C., Michael D. Manson J., File No. T-1638-13) 240 A.C.W.S. (3d) 814.

Aboriginal Peoples

SELF-GOVERNMENT

Chief not provided with opportunity to address concerns before his suspension was decided

Application for judicial review of resolution adopted by Band Council of respondent First Nation on June 8, 2012, whereby it was decided that applicant chief was not to represent views of Band Council, that his pay and allowance be suspended, and that he be denied access to offices, equipment, e-mail and phones. Reason for sanctions was alleged to have been letter sent by Chief to Prime Minister and Minister of Aboriginal Affairs and Northern Development Canada without the approval of Band Council. Letter highlighted, among other things, mishandling of money by Band Council. Application granted. Decision of Band Council to suspend chief and to strip him of his remuneration, his powers and access to his office until he accepted conditions imposed upon him was unreasonable and went beyond powers granted to Band Council by s. 84 of First Nation’s Election Policy. While one may disagree with tone of his letter, it could not reasonably be said that chief did not perform his responsibilities and leadership by calling for police investigation. There were certainly enough credible allegations of wrongdoing to raise legitimate concerns. Band Council also breached procedural fairness by suspending chief. Chief was not provided with any meaningful opportunity to address concerns of Band Council before his suspension was decided. Band Council resolution suspending chief was quashed, and First Nation was ordered to pay chief remuneration and other benefits he should have been allowed for period between June 11, 2012, and end of his term of elected office.
Tsetta v. Band Council of the Yellowknives Dene First Nation (Apr. 29, 2014, F.C., Yves de Montigny J., File No. T-1922-12) 240 A.C.W.S. (3d) 526.
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