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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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Decision was unreasonable as process of critical analysis not followed

Refugee claimant was Roman Catholic Christian citizen of Bangladesh who alleged fear of persecution by Muslim extremists. Claimant alleged that on way home from church he had been accosted by five Muslim men, one of whom had extorted money from him previous year. Claimant alleged that men identified themselves as being members of Muslim extremist group and that they threatened him and berated him for promoting Christianity and denigrating Islam. RPD found that men were only interested in extorting money from claimant, and that claimant lacked credibility because he had not sought advice or assistance from priest. RPD denied claim. Claimant applied for judicial review. Application granted; decision under review set aside and matter referred back for redetermination by differently constituted panel. Claimant had given clear, direct evidence that he did not seek assistance from priest because priests had suffered from getting involved in these disputes. RPD’s implausibility finding was unsupported speculation, and therefore decision under review was made in reviewable error that rendered it unreasonable. RPD was required to find what might reasonably be expected of Christian in Bangladesh who suffered incident of religious persecution and extortion by extremist Muslim men, make findings of fact about claimant’s response and conclude whether response conformed with what might be reasonably expected. As this process of critical analysis was not followed, decision was unreasonable.
Rozario v. Canada (Minister of Citizenship and Immigration) (Nov. 4, 2014, F.C., Douglas R. Campbell J., File No. IMM-4349-13) 247 A.C.W.S. (3d) 178.

Customs and Excise Offences


Actual possession restricted to physical possession

Plaintiff and wife were catching flight to St. Martin when they were stopped by Canadian Border Services Agency officer. They told officer they did not have cash in amount of $10,000 CAD or more. Search revealed that plaintiff was carrying currency worth $13,820.69 CAD. Officer seized funds and penalized plaintiff $2,500 before letting him leave with balance of funds. Plaintiff believed that he did not need to report money since he and his wife jointly owned it. Plaintiff appealed. Minister’s delegate affirmed officer’s decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) had been violated and penalty was appropriate. Plaintiff appealed. Appeal dismissed. Term “actual possession” in s. 12 of Act did not imply ownership. Word “actual” excluded constructive possession and restricted meaning of phrase to physical possession. Plaintiff held money and wife could only access funds if he handed them to her so only he had actual possession of funds and had to report funds pursuant to s. 12(3)(a) of Act. There was no reason to depart from plain language of s. 12(3)(a) and read into it exception for joint owners travelling together. Section 12(1) of Act was strict liability offence and plaintiff’s subjective intention was not relevant. Plaintiff did not make any attempt to clarify how much money he could carry given he was travelling with wife. Officer did not give advice to plaintiff.
Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 29, 2014, F.C., John A. O’Keefe J., File No. T-145-10) 117 W.C.B. (2d) 261.



Critical issue was whether veteran had been exposed to Agent Orange

Veteran started serving in Canadian Armed Forces around 1955. Veteran was allegedly exposed to herbicide known as “Agent Orange” in 1967. Veteran retired in 1975 when he was 43 years old. Veteran was diagnosed with prostate cancer when he was 63 years old. Veteran unsuccessfully applied for pension entitlement for prostate cancer. Veteran unsuccessfully appealed to Veterans Review and Appeal Board and unsuccessfully sought reconsideration. All decisions concluded there was no evidence that veteran had been exposed to Agent Orange. Veteran unsuccessfully sought further reconsideration based on new evidence. Veteran brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness in light of prior authorities, and decision was not reasonable. Critical issue was whether veteran had been exposed to Agent Orange. Board chose to prefer findings of particular report that use of Agent Orange was limited over statements of veteran and his comrades that they had been exposed. Board read more into report than it actually stated. In particular, there was no clear finding in report that ordinary soldiers were restricted from spray sites and did not have access to these sites. Author of report acknowledged degree of exposure of individual to any chemical sprayed was indeterminable. Veteran should have been entitled to benefit of doubt pursuant to s. 39 of Veterans Review and Appeal Board Act (Can.). Nonetheless, determination of whether veteran was exposed to Agent Orange and extent of any exposure was better left to board.
McAllister v. Canada (Attorney General) (Oct. 17, 2014, F.C., Yves de Montigny J., File No. T-470-14) 246 A.C.W.S. (3d) 829.



Conditional sentence did not represent term of imprisonment

In 1989, applicant arrived in Canada from Vietnam and became permanent resident. In 2013, he was convicted on charge of producing marijuana and given conditional sentence of 12 months to be served in community. Officer of Canadian Border Services Agency referred applicant’s file to Immigration Division to decide whether applicant should be found to be inadmissible to Canada for having been convicted of offence for which term of imprisonment greater than six months had been imposed, or offence punishable by maximum term of imprisonment of at least 10 years. Applicant applied for judicial review of officer’s decision. He asked court to overturn officer’s decision and order another officer to reconsider question of his inadmissibility to Canada. Application allowed. Applicant’s conditional sentence of 12 months did not represent term of imprisonment greater than six months. Conditional sentence was not term of imprisonment within meaning of Immigration and Refugee Protection Act (Can.). Applicant’s offence was punishable by maximum of seven years’ incarceration. While maximum sentence was subsequently raised to 14 years, applicant was not punishable by sentence of that duration. Officer should not have considered arrests and dropped charges that did not result in convictions. That rendered his decision unreasonable. Matter was referred back to another officer for reconsideration.
Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 4, 2014, F.C., James W. O’Reilly J., File No. IMM-7208-13) 246 A.C.W.S. (3d) 649.



Adverse inference drawn that evidence intentionally destroyed to affect litigation

Plaintiff was vessel owner who left his fishing vessel with defendant for routine maintenance. Defendant lifted vessel out of water and purported to secure it in cradle. About two weeks later, vessel fell during high wind and suffered damage to fibreglass hull. Defendant disposed of cradle material before marine surveyor attended to inspect vessel about two days after incident. Plaintiff brought action against defendant for damages for negligence. Action allowed. Plaintiff was awarded total of $269,206.85 as claimed. Adverse inference was drawn that evidence was intentionally destroyed to affect litigation. Defendant ought to have known that litigation would be contemplated by plaintiff and that disposing of cradle material would affect any future claim made by plaintiff. It was not necessary for party to receive actual notice of litigation. Rebuttable presumption was raised that evidence was unfavourable to defendant. Defendant had not provided sufficient evidence to rebut this presumption.
Forsey v. Burin Peninsula Marine Service Centre (Oct. 20, 2014, F.C., E. Heneghan J., File No. T-298-12) 246 A.C.W.S. (3d) 699.



Policy and forms ambiguous about when time began to run

Applicant employed by respondent since 1994, as auditor beginning in 1997 and as team leader beginning in 2002. After several poor performance appraisals, however, applicant demoted back to position as auditor in 2006. Applicant filed grievances regarding performance appraisals and demotion. Grievances referred to independent third party reviewer in April 2008. In September 2008, applicant went on leave for medical reasons. He complied with various requests for medical information until 2011, when he failed to respond. As result of failure, respondent terminated applicant for abandoning position in November 2011. Applicant filed grievance regarding termination. Grievance denied on Oct. 2, 2012. Union representative provided applicant with copy of decision on Oct. 16, advising that he had seven days from date of notice to request referral to independent third party reviewer. Respondent’s national conflict resolution office received applicant’s request for referral to independent third party reviewer on Oct. 29. Respondent denied request on basis it had been received out of time. Applicant brought application for judicial review, arguing time did not begin to run until he received formal notice of decision from respondent on Nov. 1. Application allowed. Both policy and forms were ambiguous about when time began to run. Ambiguity had to be resolved in favour of employee. Applicant, therefore, had until Nov. 8 to request referral. Respondent’s decision wrong and unreasonable in circumstances even if time began to run earlier. Matter should be remitted for decision in accordance with these reasons.
Haymour v. Canada Revenue Agency (Nov. 5, 2014, F.C., Henry S. Brown J., File No. T-377-14) 246 A.C.W.S. (3d) 117.



Without adoption having occurred in Pakistan, there can be no adoption in this case

Canadian citizen residing in Pakistan obtained guardianship of two year old Pakistani girl who had been abandoned. Application for citizenship was made for child. Canadian citizen contended that her guardianship of child was equivalent of full adoption and therefore satisfied requirement of s. 5.1(1)(c) of Citizenship Act (Can.) (CA). Minister’s delegate concluded that guardianship declared in Pakistan did not create permanent relationship of parent and child and did not constitute adoption. Application was denied and applicants applied for judicial review. Application dismissed. Interpretation of word “adoption” in s. 5.1 of CA did not accord with guardianship order issued in Pakistan on basis of Guardians and Wards Act, 1890, which ostensibly was used in this case. Only condition under s. 5.1(1)(c) of CA is that there be adoption under laws of country of residence of both applicants, i.e. Pakistan. Not only is there uncontroverted evidence that adoption does not exist in Pakistan, but Act under which order was presented as equivalent to adoption does not allow even one hint that guardianship might be close substitute to adoption, as it is understood in our law. Guardians and Wards Act, 1890 provides for, at best, what we would call foster care. Pakistani Court order confirmed that no adoption could have taken place in Pakistan. Without adoption having occurred in Pakistan, there can be no adoption in this case.
Mashooqullah v. Canada (Minister of Citizenship and Immigration) (Oct. 16, 2014, F.C., Yvan Roy J., File No. T-1929-13) 246 A.C.W.S. (3d) 35.
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