Law Times

November 11, 2013

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Page 18 November 11, 2013 Law Times • caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. SUPREME COURT OF CANADA Defences GENERAL Accused abandoned common intention to kill children but failed to neutralize her participation Accused charged with being party, together with her spouse, to murder of their three children. Appropriate for trial judge to exclude defence of abandonment from defences put to jury as defence did not have air of reality. While accused abandoned common intention to kill children, she failed to do anything to neutralize her participation, by supplying intoxicants used by her spouse to kill children, in murder plot. R. c. Gauthier (Jun. 7, 2013, S.C.C., LeBel J., Fish J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34444) 108 W.C.B. (2d) 793. FEDERAL COURT Administrative Law JUDICIAL REVIEW Lack of individual feedback tainted decision This was application for judicial review of decision of selection board. Applicant applied for three positions. Decision concluded that applicant's application did not meet pre-requisite criteria for three selection processes. Decision arose after judge ordered reconsideration by differently constituted board. Decision established that members of selection board met with applicant's supervisor to clarify her tasks without applicant being present; that review of information allowed them to determine that applicant did not meet expectations at pre-requisite stage; and that selection board informed applicant that staffing program did not provide recourse following application of corrective measure. Application granted. Selection board confused corrective measures that might be taken in context of assessment of pre-requisites with corrective measure that had been judge's decision to refer matter back for consideration by differently constituted board. Case was under de novo review and applicant was entitled to individual feedback. Applicant did not receive reasons for rejection of application, which would have allowed for corrective measures to be taken as program provided. Approach constituted breach of audi alteram partem rule. Lack of individual feedback deprived applicant of advice on professional development needs and it tainted decision. Situation called for completely new assessment. Tran c. Canada (Procureur général) (May. 1, 2013, F.C., Yvan Roy J., File No. T-728-12) 231 A.C.W.S. (3d) 4. Citizenship APPEAL Citizenship judge could not blend together three methods for determining citizenship This was appeal of citizenship judge's decision. Citizenship officer prepared document that described contradictions, irregularities and omissions in citizenship applicants' record. Case was referred to citizenship judge to determine whether applicants were eligible for citizenship under s. 5(1)(c) of Citizenship Act (Can.), and citizenship judge found they were. Appeal allowed. Citizenship judge's decision was not adequately reasoned to enable it to be understood where he took numbers or how he cal- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. culated numbers. Decision was incomprehensible so error of law was committed. Citizenship judge could chose between three methods for determining citizenship, but he could not blend three together. Due to omissions, contradictions and implausibilities, citizenship judge's analysis was not reasonable or correct. Canada (Ministre de la Citoyenneté et de l'Immigration) c. Salameh (Jan. 24, 2013, F.C., Michel M.J. Shore J., File No. T-167-12) 231 A.C.W.S. (3d) 40. OFFENCES Officer did not have discretion to act for oblique motive Adoptive father adopted two teenagers. Quebec Court recognized adoption judgment rendered in Haiti. Applicant received letter indicating citizenship application was granted. Clerical error happened and citizenship application was ultimately refused nearly two years later. Applicant was convicted of offences and removal order was made against applicant. Applicant was permanent resident. Applicant's application for citizenship for person adopted by Canadian citizen was refused. Applicant's adoption was found not to comply with rules of country where adoption took place because Institute not Social Affairs Officer approved adoption. Application for judicial review was allowed. Decision was unreasonable. Citizenship officer did not personally verify procedures that applied in Haiti and in Quebec at time of applicant's adoption. Authenticity of adoption judgment and applicant's Haitian birth certificate were not in issue. Evidence on record showed officials were uneasy about applicant's criminality and were working toward outcome. Officer engaged in selective reading of evidence and ignored all evidence submitted in support of citizenship applica- tion. Final judgment of foreign court became res judicata particularly since judgment received judicial recognition in Quebec. Applicant was legally adopted. Argument that adoption was entered primarily for purpose of acquiring status was pretext. Adoption was in best interests of child and created genuine parent-child emotional bond. Parental authority of biological parents was transferred to adoptive father. Officer did not have discretion to act for oblique motive or to not approve citizenship application that otherwise met conditions of legislation. Dufour c. Canada (Minister de la Citoyenneté et de l'Immigration) (Apr. 4, 2013, F.C., Luc Martineau J., File No. T-802-12) 231 A.C.W.S. (3d) 41. Employment PUBLIC SERVICE Error in interpretation of burden of proof had repercussions for interpretation of facts Respondent worked for CSIS on probation. Respondent's employment was terminated. Adjudicator found termination was abusive because employer failed to provide respondent with written notice of shortcomings before terminating employment and no employment-related reason was shown. Adjudicator reversed termination. Applicant sought declaration adjudicator lacked jurisdiction to deal with grievance. Application for judicial review was allowed. Adjudicator's application of burden of proof was confused. Error in interpretation of burden had repercussions for interpretation of facts. It was unreasonable to have found evidence contradicting performance evaluations was sufficient for respondent to discharge burden. Adjudicator should have asked whether e-mails convinced her that employer acted in bad faith or engaged in camouflage or sham. Canada (Procureur général) c. Bergeron (Apr. 12, 2013, F.C., Richard Boivin J., File No. T-1466-11) 231 A.C.W.S. (3d) 129. Immigration JUDICIAL REVIEW Decision based on incorrect information or questions not asked of applicant Applicant was resident and citizen of Libya. He sought temporary resident visa to allow him to attend two-year business program at college in Toronto. His wife and children applied separately for temporary resident visas. Applications were initially refused. Decision was overturned on appeal and submitted for reconsideration. Visas were again refused on reconsideration. Immigration officer was not satisfied applicant would leave with family when studies were completed. Officer found studies were not reasonable in light of one or more of applicant's qualifications, previous studies, employment, level of establishment, other educational opportunities available in Canada, language abilities, or his future prospects and plans. Applicant applied for judicial review of decision. Application granted. Decision of immigration officer lacked justification, transparency and intelligibility required for decision to be reasonable. Decision was based in part on incorrect information or on questions not asked of applicant. There was no evidence that applicant was using business course as means to permanently relocate his family to Canada. Matter was to be submitted for redetermination by different immigration officer. Hamad v. Canada (Minister of Citizenship and Immigration) (Jul. 29, 2013, F.C., Judith A. 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