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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

EXCLUSION AND EXPULSION

Conditions of release required and proportional to danger identified

Foreign national was first detained under security certificate in 2000. Foreign national was released under strict conditions after nearly seven years. Foreign national was named in second security certificate in 2008. In January 2013, some of foreign national’s conditions of release were repealed and others were softened considerably. No changes were made when matter was last considered in December 2013. Second security certificate was found to be reasonable around that time. Foreign national subsequently agreed to provide various passwords to authorities. Foreign national brought application for order repealing most release conditions. Application dismissed. Conditions of release were required and proportional to danger identified. Foreign national’s record regarding his most recent conditions of release had not been exemplary. Foreign national had breached his conditions of release by, inter alia, not giving proper notice of acquisition and use of telephone and fax services. Foreign national’s recent attitude, action, and behaviour were also indicative of unwillingness to collaborate and co-operate with supervisors. Foreign national’s conduct could give impression that he had something to hide. Fact that underlying proceedings were long and complex did not in itself support less strict conditions of release. Report from psychiatrist was given little weight due to inaccuracies. Foreign national’s proposed questions for certification were not certifiable.
Mahjoub, Re (Jul. 18, 2014, F.C., Simon Noel J., File No. DES-7-08) 244 A.C.W.S. (3d) 407.

Environmental Law

ENFORCEMENT

Failure to apply definition of hazardous recyclable material led to erroneous conclusion

Canada was party to international agreements that required controls on export and import and conveyance of hazardous products that might harm environment. Canada complied with agreements through Canadian Environmental Protection Act, 1999, and Exports and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Can.) (Export and Import Regulations). Respondent operated waste petroleum management facilities. VES supplied oil to respondent. Respondent delivered three to four million litres per year to Maine implicating Export and Import Regulations. Oil from VES was used oil from garages that performed oil changes and oil was not transformed prior to shipping to respondent. Product was not subject to any refining process apart from filtration, gravitational settlement and water removal. Respondent did not have permit to export used oil to United States. Notice of intent to issue environmental protection compliance order was issued to respondent. Order directed respondent to cease all export of controlled substance into United States until export permit was issued. Chief Review Officer set aside environmental compliance order finding product was recycled and reprocessed fuel and not subject to regulation. Appellant appealed. Appeal allowed. It was unclear what definition of hazardous recyclable material Chief Review Office applied in decision. Fact that intended use of substance was to be in one of forms of recycling contemplated by Export and Import Regulations did not mean it was recycled when it left respondent’s facility as Chief Review Officer concluded. Chief Review Officer’s failure to apply statutory definition of hazardous recyclable material led him to conclude erroneously that Export and Import Regulations did not apply to product exported by respondent. Had Chief Review Officer correctly applied statutory and regulatory definition, he would have found that product was hazardous recyclable material and upheld order.
Atlantic Industrial Services v. R. (Aug. 5, 2014, F.C., Richard G. Mosley J., File No. T-1307-13) 244 A.C.W.S. (3d) 106.

Constitutional Law

CHARTER OF RIGHTS

Decision to eliminate benefit previously provided was ‘cruel and unusual’

Interim Federal Health Program (IFHP) provided health insurance coverage to refugee claimants and others seeking Canada’s protection. Governor in Council passed Orders in Council (OICs), which significantly modified IFHP. Level of coverage was reduced for many and eliminated for others. Three public interest organizations and two individuals brought application to declare OICs invalid. Application granted. OICs violated s. 12 of Canadian Charter of Rights and Freedoms and not saved by s. 1. GIC had intentionally targeted group of poor, vulnerable and disadvantaged individuals, to encourage them to leave country more quickly once refugee claims rejected, and to deter “bogus” claimants from seeking protection of Canada. In unusual circumstances of case, decision to limit or eliminate benefit previously provided to discrete minority of individuals coming within administrative control of government subjected them to “treatment” for purposes of s. 12. Treatment was “cruel and unusual”, particularly as it affected children who had been brought to Canada by their parents. Cuts to health insurance affected by OICs potentially jeopardized health, and indeed very lives, of innocent and vulnerable children in manner that shocked the conscience and outraged our standards of decency. Declaration of invalidity suspended for four months.
Canadian Doctors for Refugee Care v. Canada (Attorney General) (Jul. 4, 2014, F.C., Anne L. Mactavish J., File No. T-356-13) 244 A.C.W.S. (3d) 73.

Immigration

PERSON IN NEED OF PROTECTION

Board’s credibility analysis as a whole was unreasonable

Claimant was citizen of Georgia who claimed protection based on physical and verbal abuse by husband. Board did not believe claimant’s allegation that claimant’s husband had tied her to chair and burnt her back with iron. Board assigned claimant’s medical reports indicating burn scars on her back low probative value on basis that board did not believe facts on which reports were based. Claimant had confronted husband about affair he was having and board concluded from this that if she had courage to confront husband and that husband was under influence of drink when abuse allegedly took place, it was implausible that claimant could have been physically abused by husband. Board concluded claimant lacked credibility and denied claim. Claimant applied for judicial review. Application granted. Board’s primary negative credibility finding was that it was implausible that claimant could not or would not have overpowered her husband after he was drinking and began to physically abuse her. This finding reflected disregard and misunderstanding of nature of domestic abuse. To suggest that domestic abuse is perpetrated against victims whose personal qualities allow it to occur ignores fact that abuse is not consensual and takes place in range of social and interpersonal circumstances. Conclusion was not justifiable or intelligible. There was no evidentiary basis to conclude that claimant could have physically repelled attacks of her husband, given typical size and strength disparity between man and woman. Likewise, given persistent abuse claimant had suffered, there was no basis to assume that she would have psychological strength to defend herself, even if it were physically possible. Board’s credibility analysis as whole was unreasonable.
Danelia v. Canada (Minister of Citizenship and Immigration) (Jul. 16, 2014, F.C., Michael D. Manson J., File No. IMM-3324-13) 242 A.C.W.S. (3d) 893.

Aboriginal Peoples

SELF-GOVERNMENT

Permanent residency requirement was not met by Chief

Current Chief of Cowessess First Nation was evicted from house on Reserve because of non-payment of rent. Current Chief lived in Regina and no longer had home on Reserve. Current Chief maintained farmland that he worked on Reserve and kept equipment on land. Motion was passed to transfer unit to current Chief. Tenant refused to vacate unit and current Chief was unable to take occupancy. Current Chief refused to call meeting to discuss issues with respect to his residency and Cowessess First Nation #73 Custom Election Act. Current Chief was not allocated house on Reserve. Band Council refused to order by-election to fill position of Chief. There was dispute about whether position of Chief was vacant by operation of law, which concerned current Chief’s compliance with residency requirements set out in Act. Applicants sought judicial review. Application granted. Position was deemed vacant. Respondents did not adduce sufficient evidence to show traditional understanding of permanent residence. Relevant provisions of Act required physical presence of Chief on Reserve. Record showed current Chief did not take up residence on Reserve. Permanent residency requirement was not met. Current Chief did not take up permanent residence on Reserve within three-month time period required by Act, which triggered article of Act that mandated that when person elected as Chief did not take up permanent residence as required by Act, position of Chief was deemed vacant.
Ferguson v. Lavallee (Jun. 13, 2014, F.C., E. Heneghan J., File No. T-1412-13) 242 A.C.W.S. (3d) 756.

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.
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