Law Times

August 4, 2014

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/356774

Contents of this Issue

Navigation

Page 14 of 15

Law Times • augusT 4, 2014 Page 15 www.lawtimesnews.com trial if so required. Application granted. Matter was remitted to Youth Court judge for further consideration. Crown must ap- ply to extend period for holding prima facie hearing and establish that extension was necessary for proper administration of justice. Judge initially had jurisdiction pursuant to s. 672.33 therefore order was not void ab initio. Judge lost jurisdiction by proceeding ex parte and made orders that could not be supported. R. v. B. (G.) (Mar. 17, 2014, Ont. S.C.J., L.C. Leitch J., File No. 11452) 112 W.C.B. (2d) 684. FEDERAL COURT Aboriginal Peoples REAL PROPERTY Band council to reconsider decision including giving farmer opportunity to be heard First Nation allowed non-Aborig- inal farmers to farm on reserve lands under permits. Farmer had been allowed to farm on reserve since 1981. Farmer's latest permits would expire on March 31, 2016. First Nation's band council al- leged various types of impropriety against farmer. Band council noti- fied farmer in December 2013 that he would no longer be allowed to farm on reserve land as of March 31, 2014. Farmer brought applica- tion for judicial review. Applica- tion granted; matter remitted for reconsideration. Band council was to reconsider decision in ac- cordance with directions that in- cluded giving farmer opportunity to be heard. Farmer was entitled to procedural fairness before decision was made to terminate permits before they expired. There was no authority suggesting procedural fairness should not apply to band council's decision. Decision was of immense importance to farmer's business. Farmer had legitimate expectations that band council would secure permits he needed until March 31, 2016. Whole his- tory of farmer's long association with First Nation required band council to provide farmer with adequate notice of case he had to answer before decision was made to terminate relationship with him. Hengerer v. Blood Indians on the Blood Indian Reserve No. 148 (Mar. 6, 2014, F.C., James Russell J., File No. T-284-14) 239 A.C.W.S. (3d) 6. Administrative Law JUDICIAL REVIEW Evaluating education and qualification of aspiring pharmacists was provincial matter All provinces had licensing boards to determine if someone could practice pharmacy within the province, and all provinces except Quebec required ap- plicants to pass the Pharmacy Examining Board of Canada (PEBC) qualifying examination. Under Regulations to Pharmacy Act, 1991 (Ont.), applicants had three tries to pass the exam and could request a fourth attempt upon completion of remedial as- sistance. After four unsuccessful attempts, Regulations required an applicant to obtain a new Bachelor's Degree and try again. Applicant failed test three times, did remedial work, and then made fourth attempt but failed again. Applicant requested fifth attempt, but PEBC refused. Ap- plication for judicial review of PEBC's decision refusing to grant applicant fifth attempt at exam. Application dismissed. Evaluat- ing education and qualification of aspiring pharmacists was pro- vincial matter, and each province had Regulations. Section 12(1) of An Act to Incorporate the Phar- macy Examining Board of Can- ada, only amounted to limited authority to allow judicial review by Federal Court of certain re- movals from PEBC's Pharmacy Register due to quasi-criminal allegations. This was not suffi- cient body of federal law to nour- ish grant of jurisdiction. Federal court lacked jurisdiction to hear application. Aljawhiri v. Canada (Pharmacy Examining Board) (Mar. 31, 2014, F.C., Glennys L. McVeigh J., File No. T-718-13) 239 A.C.W.S. (3d) 245. Contracts TENDER Transfer of bidder's assets and personnel had practical effect of changing bidder In November 2010, public works department of federal govern- ment issued solicitation of inter- est and qualification for procure- ment of radar system for six air force bases and one training site. Five entities, including applicant and respondent companies, de- termined to be qualified to bid. In January 2012, department is- sued request for proposal, which incorporated by reference cer- tain standard clauses and condi- tions one of which provided that bids could not be assigned or transferred. Five entities submit- ted bids by closing date in May 2012. Only applicant's, which was lowest, and respondent's found to be compliant. Depart- ment sought approval to extend bid validity period to March 21, 2013. Applicant agreed, but asked whether contract would be awarded in 2012. In January 2013, applicant underwent cor- porate reorganization in which assets and personnel of applicant transferred and two sister com- panies merged into single entity. Department determined that reorganization not true merger, left applicant a shell without ability to carry out contract and breached non-assignment clause in request for proposal. Since plaintiff 's bid rendered non- compliant, contract awarded to respondent. Applicant brought application for judicial review. Application dismissed. Depart- ment correct that transfer or as- signment of bidder's assets and personnel had practical effect of changing bidder and rendering original bidder incapable of sat- isfying terms of request for pro- posal. Only reasonable course of action for department to declare applicant's bid non-compliant. Failure to advise applicant prior to awarding contract to respon- dent would not have changed course of events and did not con- stitute breach of duty of proce- dural fairness. Selex Sistemi Integrati S.p.A. v. Canada (Attorney General) (Mar. 19, 2014, F.C., Jocelyne Gagné J., File No. T-809-13) 239 A.C.W.S. (3d) 85. Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Applicant did not provide evidence that medical condition was related to harassment Applicant was on sick leave when former employer indicated ap- plicant's employment would be terminated if he failed to re- turn to work, retire on medical grounds, or resign. Applicant's employment was terminated. Applicant alleged discrimina- tion by former employer, assert- ing that his inability to return to work was related to harassment. Canadian Human Rights Com- mission decided not to deal with applicant's complaint. Commis- sion accepted finding from re- port that applicant's harassment and termination allegations were separate because allegations of harassment were not connected to termination of employment. Applicant sought judicial review. Application dismissed. Deci- sion was reasonable. Applicant did not provide evidence that medical condition preventing him from working was related to harassment. Applicant did not explain how commission's pro- cess in reaching decision to treat allegations separately was unrea- sonable. Commission's failure to find applicant's submissions unpersuasive was reasonable. Where commission followed re- quirements of Canadian Human Rights Act, decision issued 13 months later did not amount to violation of duty of fairness. Panula v. Canada (Attorney Gen- eral) (Feb. 24, 2014, F.C., Glennys L. McVeigh J., File No. T-62-12) 239 A.C.W.S. (3d) 165. Immigration REFUGEE STATUS Board erred in rejecting evidence of translator who confirmed claimant's dialect Refugee claimant, aged 24, was man purportedly from North Korea. Refugee claimant alleged his family was ordered to live in remote community due to his father helping another North Korean f lee to China. Refugee claimant alleged his parents f led to China and arranged to smuggle him out of North Ko- rea. Refugee claimant came to Canada after his parents were al- legedly returned to North Korea. Refugee claimant unsuccessfully applied for refugee protection. Immigration and Refugee Board determined refugee claimant had not established his identity or citizenship. Refugee claimant brought application for judicial review. Application granted; mat- ter remitted for re-determination. Refugee claimant raised suf- ficient reviewable errors to ren- der decision as whole untenable. Board erred in rejecting evidence of translator who confirmed refugee claimant used North Korean dialect. Board's finding that translator did not have suffi- cient expertise was without basis. Board erred in not engaging in reasonably balanced assessment of evidentiary value of letter from person in China who had assisted refugee claimant. Board erred in failing to explain why it gave no weight to refugee claimant's abil- ity to sing North Korean national anthem. Board committed some significant errors when dealing with refugee claimant's narrative of his escape from North Korea. Jung v. Canada (Minister of Citi- zenship and Immigration) (Mar. 21, 2014, F.C., James Russell J., File No. IMM-12470-12) 239 A.C.W.S. (3d) 171. Board's reliance on minor discrepan- cies in dates was too microscopic Refugee claimants were mother, father, and child who were citi- zens of Hungary of Roma eth- nicity. Refugee claimants came to Canada in May 2011. Refugee claimants alleged they had faced persecution and discrimina- tion due to their ethnicity and had well-founded fear of further persecution if returned to Hun- gary. Refugee claimants unsuc- cessfully applied for refugee protection. Immigration and Refugee Board found refugee claimants were not credible and had not rebutted presumption of adequacy of state protection. Same board member granted refugee protection to mother's sister on same day. Refugee claimants brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness and decision was unreasonable. This was borderline case with respect to credibility, but board's reli- ance on minor discrepancies in dates was too microscopic and unreasonable. Mother had of- fered reasonable explanations for most inconsistencies. Be- cause board's credibility finding was expressed as "cumulative", it was not possible to say whether decision would have been same in absence of errors. In addition, problem arose from board find- ing mother's sister had rebut- ted presumption of adequacy of state protection, but refugee claimants had not. Underly- ing facts had been substantially same so board had obligation to explain basis for differential treatment. Rusznyak v. Canada (Minister of Citizenship and Immigration) (Mar. 14, 2014, F.C., James Rus- sell J., File No. IMM-13104-12) 239 A.C.W.S. (3d) 173. No analysis of whether state efforts had resulted in "operational adequacy" Refugee claimants were father, mother, and two children who were citizens of either Czech Re- public or Slovak Republic and of Roma ethnicity. Refugee claim- ants came to Canada in 2009. Refugee claimants alleged they had been attacked in their home countries on several occasions over many years because they were Roma. Refugee claimants alleged police never did anything. Refugee claimants unsuccess- fully applied for refugee protec- tion. Refugee claimants brought application for judicial review. Application granted; matter re- mitted for re-determination. Im- migration and Refugee Board appeared to have rejected claims on basis of state protection analy- sis, but having regard to cred- ibility and nexus issues. State protection analysis was entirely inadequate and unreasonable. Board conceded difficulties that Roma people faced in Czech Republic, but then attempted to show state was making "efforts" to resolve problems. There was no real analysis of whether such ef- forts had resulted in "operational adequacy". There were similar problems with respect to board's state protection analysis for Slo- vak Republic. If board had not reasonably assessed operational adequacy, board could not have assessed whether presumption of adequacy of state protection had been rebutted. Kina v. Canada (Minister of Citi- zenship and Immigration) (Mar. 21, 2014, F.C., James Russell J., File No. IMM-11748-12) 239 A.C.W.S. (3d) 172. SELECTION AND ADMISSION Decision about marriage without trying to conduct complete interview Foreign national was citizen of Nepal who applied for perma- nent residence as family member of her husband who was pro- tected person. Husband's refugee claim was based on his fear of persecution at hands of Maoists in Nepal. Husband's family ar- ranged his marriage to foreign national, who was ten years younger, had limited education compared to husband and who had not travelled. Officer found that these factors meant foreign national and husband were not compatible. Officer terminated interview with foreign national when she was unable to answer two questions about husband's refugee claim. Foreign national told officer that she had been pregnant and had miscarried couple's baby, but officer failed to question her about this event. Officer denied application and foreign national applied for judi- cial review. Application granted. There was nothing about char- acteristics and experiences of foreign national and husband to suggest that marriage was not genuine. Given that only two questions were unanswered, it was unreasonable for officer to reach decision about genuine- ness of marriage without at least trying to conduct complete in- terview which covered all rel- evant issues. Pathak v. Canada (Minister of Cit- izenship and Immigration) (Mar. 4, 2014, F.C., Sandra J. Simpson J., File No. IMM-12497-12) 239 A.C.W.S. (3d) 178. LT CASELAW

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - August 4, 2014