Law Times

Law TiMes • March 17, 2014 Page 15 www.lawtimesnews.com require that foreign national be engaged in people smuggling for financial or other material benefit in order to be declared inadmissible to Canada. Board's interpretation of s. 37(1)(b) was not inconsistent with Canada's international obligations under Refugee Convention, Transna- tional Organized Crime Conven- tion or Smuggling of Migrants Protocol. For purposes of s. 37(1) (b) of Act, required mens rea was established in these cases when board had reasonable grounds to believe that respondents knew that smuggled persons did not have required documenta- tion, but still agreed to organize, induce, aid or abet those per- sons entry into Canada or into concerned foreign jurisdiction and motive for doing so had no bearing on analysis. Findings made by board in each of cases here were sufficient to establish mens rea requirement of s. 37(1) (b) of Act, irrespective of motive of respondents. Board's find- ings with respect to meaning of people smuggling under s. 37(1) (b) of Act were not constitution- ally overbroad. Section 37(1)(b) of Act did not apply to Canadian citizens. Section 37(1)(b) did not contemplate close family mem- bers who could avail themselves of Refugee Convention and who mutually assisted themselves to enter Canada without proper documentation. Section 37(1) (b) of Act did not engage s. 7 of Canadian Charter of Rights and Freedoms, as s. 7 rights were not engaged at eligibility determina- tion and exclusion order stages of process. P. (J.) v. Canada (Minister of Public Safety and Emergency Prepared- ness) (Nov. 12, 2013, F.C.A., K. Sharlow J.A., Robert M. Main- ville J.A., and D.G. Near J.A., File No. A-29-13, A-498-12, A-563- 12) Decision at 222 A.C.W.S. (3d) 772, 224 A.C.W.S. (3d) 172 and 227 A.C.W.S. (3d) 1128 were re- versed. 235 A.C.W.S. (3d) 460. Unemployment Insurance DECISIONS OF UMPIRE Applicant withdrew direct deposit application before entitlement determined Applicant was police officer who suffered injury at work. Appli- cant successfully applied for sick- ness benefits under Employment Insurance Act (Can.). Applicant directed Employment Insurance Commission to deposit benefits directly into bank account. How- ever, before he began to receive his benefits, applicant made as- signment in bankruptcy. Appli- cant's bank account came under control of trustee in bankruptcy. Applicant advised commission to make payments to him di- rectly. Commission had already deposited amount of $5,426 in applicant's bank account. Com- mission advised applicant that it would take care of issue and issued him cheque in amount of $5,426. Commission subse- quently took position that appli- cant had received his statutory entitlement twice, and sought to recover what they character- ized as overpayment. Applicant had consistently taken opposite position, but he was unable to persuade commission, board of referees and umpire that he was correct. Applicant now applied for judicial review of umpire's decision. Application allowed. Umpire's decision was based on finding that commission had de- posited applicant's benefits to his bank account in accordance with his instructions. In fact, applicant withdrew his direct deposit appli- cation before his entitlement was determined, which commission subsequently acknowledged be- fore issuing replacement cheque. Applicant accepted replacement cheque based on assurance of commission that they would take responsibility for correcting erroneous misdirection of previ- ous payments. Only reasonable conclusion on evidence was that applicant did not benefit from misdirected payments within meaning of s. 44 of Act. Roby v. Canada (Attorney Gen- eral) (Oct. 24, 2013, F.C.A., K. Sharlow J.A., Robert M. Main- ville J.A., and D.G. Near J.A., File No. A-8-13) 235 A.C.W.S. (3d) 568. FEDERAL COURT Administrative Law JUDICIAL REVIEW Rule of non-interference with ongoing administrative processes vigorously enforced Applicant sought to prohibit or restrain ongoing investigation by Public Sector Integrity Commis- sioner into allegations of wrong- doing made against her pursuant to s. 26 of Public Servants Disclo- sure Protection Act (Can.). Attor- ney General, on behalf of named respondents, applied for order striking out applicant's notice of application for judicial review. Attorney General claimed appli- cation was premature, as being contrary to rule of non-interfer- ence with ongoing administra- tive processes, which might in any event not come to conclusion against applicant, thereby render- ing matter moot. Application al- lowed. Rule of non-interference with ongoing administrative pro- cesses was vigorously enforced, being permitted only in narrow- est of exceptional circumstances measured against exceptionally high threshold. In this case, there were no exceptional circum- stances that would permit inter- ference with commissioner's on- going investigation. Cousineau-Mahoney v. Canada (Public Sector Integrity Commis- sioner) (Nov. 7, 2013, F.C., Peter Annis J., File No. T-1210-13) 235 A.C.W.S. (3d) 287. Immigration REFUGEE STATUS All documents filed must be considered before coming to conclusion Foreign national was alleged citizen of Democratic Republic of Congo ("DRC") who claimed refugee protection on basis of his political opinion and risk of tor- ture if returned to DRC. Foreign national fled DRC, and came to Canada using false British pass- port, on which he had inserted his photo. University letter and transcript submitted by foreign national contained numerous spelling errors. Foreign national also submitted driver's licence and voter card, which included photograph and also submitted arrest warrant, all of which board concluded were not genuine doc- uments. Board rejected claim on ground foreign national had not established his identity. Applica- tion granted. Board failed to deal with applicant's original voter card, which was national iden- tity card in DRC, and his driver's licence. Board could not come to reasonable assessment of ap- plicant's identity by only focusing on those documents where au- thenticity appeared doubtful and ignoring those documents which appeared to be trustworthy. All documents filed and explana- tions provided by applicant must be considered before coming to conclusion. Board erred in de- termining that applicant had not established his identity. Kabongo v. Canada (Minister of Citizenship and Immigration) (Oct. 25, 2013, F.C., Yves de Montigny J., File No. IMM-8204- 12) 235 A.C.W.S. (3d) 475. SELECTION AND ADMISSION Officer's decision devoid of compassion Subjective and objective analysis required. Foreign national cou- ple, aged 78 and 76, were citizens of India, who had made unsuc- cessful application for permanent residence from within Canada on humanitarian and compas- sionate (H&C) grounds pursu- ant to s. 25 of Immigration and Refugee Protection Act (Can.). Couple had been supported by son in India who had died un- expectedly at age of 49 two years previously. Two other sons had resided in Canada since 1996, were Canadian citizens, were doing well financially and had families and children who loved and supported foreign nationals. Officer found that couple could find assistance in India compa- rable to that provided by family in Canada, that family in Canada had resources to travel to India to see couple during six-year wait for processing of Family Class ap- plication, and that couple had not demonstrated sufficient estab- lishment in Canada to overcome lack of other H&C factors. Cou- ple applied for judicial review. Application granted; decision set aside and matter referred back for redetermination by different im- migration officer. Evidence indi- cated that care couple required to stabilize and improve their lives was care of family in Canada. Of- ficer's finding that Canadian fam- ily could visit couple in India was evidence of failure on part of of- ficer to recognize core reason for making s. 25 application: urgent need to provide permanent resi- dence in Canada. Disproportion- ate impact analysis required sub- jective and objective analysis and must reflect understanding of re- ality of life person would face, in body and mind, if forced to leave Canada. In determining these es- sential features, decision-maker must apply compassion. Officer's decision devoid of compassion. Officer exhibited profound mis- understanding of evidence in reaching decision, and decision was therefore unreasonable. Paul v. Canada (Minister of Citi- zenship and Immigration) (Oct. 28, 2013, F.C., Douglas R. Camp- bell J., File No. IMM-10224-12) 235 A.C.W.S. (3d) 484. ONTARIO CIVIL DECISIONS Animals GENERAL Plaintiff had no right to have monkey returned to her Plaintiff had monkey. Plaintiff went shopping and le monkey in double locked crate inside locked car. Monkey escaped from crate and car and ran away. Mon- key entered store and was picked up by Toronto Animal Services (TAS). Plaintiff arrived at shelter to claim monkey. TAS would not give monkey to plaintiff, as it was concerned that monkey could contain diseases that were fatal to humans. Aer plaintiff con- sulted with husband and friend she signed document that stated "I surrender/sign over the ani- mal". TAS took animal to defen- dant sanctuary where sanctuary signed adoption form. Sanctuary refused to give monkey to plain- tiff. Plaintiff brought action to re- cover monkey. Action dismissed. Monkey was not domestic ani- mal. Monkey was wild animal by virtue of behaviour and qualities. Concept of habit of returning home did not apply, as monkey had not previously escaped so it was not possible to know wheth- er it might have returned home. Concept of immediate pursuit did not apply. Although plaintiff immediately pursued monkey once she learned it had escaped, monkey was not stolen. Provi- sions of city's bylaw did not oust common law qualified property rights in wild animals. When monkey ran away from plaintiff and she lost possession of him, she also lost ownership of him. Plaintiff had no right to have monkey returned to her. Sanctu- ary was owner of monkey. Nakhuda v. Story Book Farm Pri- mate Sanctuary (Sep. 13, 2013, Ont. S.C.J., M.E. Vallee J., File No. Oshawa 81654/12) 235 A.C.W.S. (3d) 297. Agency REAL ESTATE AGENTS AND BROKERS Defendants' actions designed to defeat plaintiffs' claim for commission Plaintiffs were real estate broker- age and real estate agent. Defen- dants were vendors and purchas- ers of home. Plaintiffs alleged defendant cancelled listing agree- ment to defeat their claim for real estate commission. Plaintiffs had represented vendors with respect to sale of their home. Purchas- ers had put in offer on home for $525,000. Offer was rejected by vendors. Vendors then cancelled listing agreement and took home off market. Vendors then re-listed home with new agent and put home back on market. Purchas- ers then purchased home for $530,000. Plaintiffs brought mo- tion for summary judgment. Mo- tion granted. Defendants re-listed property with new agent five days aer cancelling prior listing agree- ment with plaintiffs. New agent only charged them commission of $1,500 instead of 5% of sale price. Defendants' actions were designed to defeat plaintiffs' claim for commission. Judgment was granted in amount of $29,945. Homelife Professional Realty Inc. v. Moondi (Nov. 19, 2013, Ont. S.C.J., H.S. Arrell J., File No. 12- 37464SR) 235 A.C.W.S. (3d) 294. Professions BARRISTERS AND SOLICITORS Lawyers' practices were completely separate from each other and always had been Parties were partners and own- ers of two properties, each regis- tered in one of their names, with the other holding 50% interest in trust for the other. Defendant attempted to sell property and retained real estate lawyer, but transaction did not go through. However, property was subse- quently sold, and plaintiff com- menced action against defendant to realize his interest from sub- sequent sale of property. Case would likely involve accounting. Plaintiff 's lawyer's office was in same small office building as real estate lawyer used by defendant in aborted sale. Motion by defen- dant for order removing plain- tiff 's counsel on basis close prox- imity of lawyers' offices meant any reasonable person would be concerned about transmis- sion of confidential information between lawyers. Cross-motion by plaintiff to have matter put under case management. Mo- tion dismissed; cross-motion allowed. Real estate lawyer only represented defendant on single attempted transaction five years ago. While real estate lawyer's af- fidavit contained unfortunate working "I am informed and verily believe", which fuelled de- fendant's suspicions lawyers had been discussing case, none of the information was confidential or privileged. Lawyers' practices were completely separate from each other and always had been. Given defendant was now self- represented, case management would help move matter forward. Mattar v. Dahnoun (Nov. 22, 2013, Ont. S.C.J., Douglas Belch J., File No. 13-57506) 235 A.C.W.S. (3d) 542. LT CASELAW

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