Law Times

Law Times • February 11, 2013 must be quashed. Sandoval v. Canada (Minister of Citizenship and Immigration) (Oct. 31, 2012, F.C., O'Keefe J., File No. IMM-1509-12) 221 A.C.W.S. (3d) 946. Physical welfare of children should not have been mixed with parents' Applicants, married citizens of India with two Canadian-born children, remained in Canada despite inadmissibility. Applicants applied for refugee status, claiming that due to religious differences they will become victims of honour killings if they return to India but refugee claim rejected. Applicants' application for permanent residence on humanitarian and compassionate grounds not approved and applicants applied for judicial review. Applicants' application for pre-removal risk assessment ("PRRA") rejected and applicants applied for judicial review. While applicants' misconduct should not be condoned, it did not undermine judicial review proceedings to degree that justified dismissing judicial review applications. Both decisions under review flawed. Physical welfare of children should not have been mixed with parents' and should have been addressed and assessed in context of their best interests rather than part of overall risk assessment. Evidence established that children face significant risk to life and health in India and this should have been given significant weight on application for permanent residency on humanitarian and compassionate grounds. Officer conducted PRRA erred in failing to apply correct legal test which is whether there would be more than mere possibility of persecution. 2010 US DOS Report published after hearing was arguably new evidence and was deserving of consideration. Officer obliged to state why report did not change anything and failure to do so meant decision not transparent. Walia v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 16, 2012, F.C., Zinn J., File No. IMM-1745-12; IMM9265-11) 221 A.C.W.S. (3d) 951. Board's approach demanded more of applicant's memory than was reasonable Application for judicial review of denial of refugee claim. Applicant was Kurdish citizen of Turkey who alleged that he was persecuted due to his participation in Kurdish political groups, including detention and torture by Turkish police. Applicant was supporter of HADEP, (People's Democracy Party) which supported cause of Kurdish nationalism. Applicant alleged that in 1995 and in 1999, he was detained and subjected to being blindfolded and tortured. Applicant further alleged that in 2009, he was attacked by Turkish nationalists and detained by police for two days and was badly tortured, resulting in chest wound. In 2010, he was detained by police, who attempted to recruit him as informant. Applicant left Turkey and made refugee Page 15 CASELAW claim in Canada. Board rejected claim on ground that applicant lacked credibility. Psychological report in evidence referred to applicant's religion as Alevi instead of Muslim and board rejected applicant's explanations that this was due to translation error. Applicant was unable to produce any document proving his religion. Since many Alevi brought forward refugee claims in Canada, board found that applicant had attempted to embellish his claim by telling doctor he was Alevi and made negative credibility finding. Board also made negative inference as to credibility based on fact that applicant had expressed no pro-Kurdish political opinions during his time in Canada. Board also noted inconsistencies in applicant's accounts of torture and medical evidence. Board considered whether he would suffer persecution simply as Kurdish person in Turkey and concluded Kurds face discrimination but not persecution. Board rejected claim. Applicant contended that board made number of negative inferences due to matters irrelevant or peripheral to applicant's claim. Application granted. Board's focus on minor details of torture incidents was indicative of overzealous approach that demanded more of applicant's memory than was reasonable, especially given his central allegation that he was victim of repeated torture. Board was right to be concerned that key piece of applicant's evidence, medical report, referred to applicant's religion as Alevi, however all of applicant's other documents that mentioned religion stated that his religion was Islam or Muslim and given this fact, board's finding that applicant lacked credibility on this basis was not reasonable. Board's finding that applicant did not take part in Kurdish activities in Canada did not make applicant not credible. Board's decision was set aside. Dag v. Canada (Minister of Citizenship and Immigration) (Oct. 29, 2012, F.C., O'Keefe J., File No. IMM-1630-12) 221 A.C.W.S. (3d) 955. Board failed to address fundamental question of what constituted persecution Application for judicial review of decision dismissing applicants' refugee claim. Applicants were father and daughter who were Roma citizens of Hungary. Mother found inadmissible because she and her parents had abandoned previous claim so she filed pre-removal risk assessment ("PRRA") application. Both refugee claim and PRRA were based on shared history of abuse, harassment and discrimination. Parents were humiliated at school and denied access to high school, had difficulty securing and maintaining employment, wife was attacked while working and fired and police would not investigate because she could not identify attackers, daughters was repeatedly attacked at school and administrators did nothing, parents were attacked and required medical attention yet police did not investigate. Board recognized Roma faced discrimination in Hungary but found it did not amount to persecution and state protection was available. On same evidence, PRRA officer found wife would face more than mere possibility of persecution if returned and state protection was not adequate. Application allowed. Reasonable people could reach different conclusions on same evidence and board not bound by PRRA decision but, PRRA decision was before board, so board was required to refer to it and explain why it reached different conclusion on same facts. Board found treatment of Roma did not amount to persecution, yet detailed marginalization, increasing racism and violence and use of excessive force by police against Roma people. Board failed to address fundamental question of what constituted persecution. Board also erred in finding there was no persecution simply because applicants were able to attend school and unreasonably found they were not discrimination against in employment. Board did not accept applicants' claim police did not even try to investigate, but gave no reasons for rejecting their evidence. Pinter v. Canada (Minister of Citizenship and Immigration) (Sep. 25, 2012, F.C., Zinn J., File No. IMM-4785-11) 221 A.C.W.S. (3d) 962. Parole REVOCATION Inconceivable that accused would be running company without having knowledge of client's finances Application by accused to Federal Court for judicial review of decision of National Parole Board appeal division made in March 2011 that confirmed parole revocation decision made by National Parole Board in July 2010. In May 2005 accused was sentenced to three years and six months' imprisonment for three counts of fraud over $5,000 and for two counts of failing to comply with recognizance. In December 2009 accused was released on day parole, subject to condition that he was not to be employed in position that would provide him with access to financial records of others. In February 2010 accused accepted employment with company without approval of his parole officer. Police investigated accused's employment and after they concluded that accused was solely responsible for running company parole officer recommended that accused's parole should be revoked. Decisions under review were then made. Accused was released on day parole in August 2011 and on statutory release in January 2012. Application dismissed. Even though matter was moot and there was no live controversy court exercised its discretion to decide merits of this case because of future implications www.lawtimesnews.com for accused from decisions under review. Board considered all relevant evidence before it and it set out factual findings upon which revocation was based. Board's decision was reasonable as it was inconceivable that accused would be running company without having knowledge of client's finances. Reasons provided by appeal division for refusing to alter board's decision were more than sufficient to support its conclusions. Decision of appeal division was reasonable and accused was not denied procedural fairness. Board and appeal division also provided sufficient reasons for their respective decisions. Rootenberg v. Canada (Attorney General) (Nov. 2, 2012, F.C., de Montigny J., File No. T-1228-11) 104 W.C.B. (2d) 306. ONTARIO CIVIL CASES Appeal LEAVE TO APPEAL Reason to doubt injunctive relief available against third party Appellant sought leave to appeal motion judge's granting injunction. Appellant obtained mining claims under Mining Act (Ont.), in respect of claims block. Claims block land were adjacent to treaty land of respondent First Nation and lied within traditional territory over which First Nation asserted treaty and Aboriginal rights. Ontario advised appellant that it should contact First Nation to consult with it regarding intended exploration program. No consultation occurred before appellant began drilling. First Nation brought claim seeking declaration that appellant breached First Nation's aboriginal or treaty rights under s. 35(1) of Canadian Charter of Rights and Freedoms and it sought damages. First Nation then brought motion for interlocutory injunction restraining appellant from engaging in activities relating to mineral exploration in area of treaty lands. Motion judge proceeded on basis that appellant was subject to duty to consult and accommodate that had been delegated to it by Ontario. Motion judge granted injunction. Leave to appeal granted. There were conflicting decisions on whether appellant was subject to duty to consult in respect of its proposed exploration program. Insofar as motion judge's decision was based on conclusion that appellant had duty to consult and that informed conclusion regarding requirement of prima facie case and irreparable harm, there was reason to doubt correctness of decision. There was reason to doubt that injunctive relief was available against third party in respect of First Nation's intended action. There was reason to doubt correctness of decision insofar as First Nation asserted it was entitled to injunction against appellant based only on Crown's failure to consult and accommodate and irreparable harm arising by appellant's proposed drilling program. Issues raised matters of importance such that appeal should be heard. Court should clarify respective obligations of Crown and mining exploration companies operating in Ontario toward First Nations whose treaty or aboriginal rights might be adversely affected by exploration activities. Wahgoshig First Nation v. Ontario (Sep. 4, 2012, Ont. S.C.J. (Div. Ct.), Wilton-Siegel J., File No. DC-12-0000002700ML) Leave to appeal from 213 A.C.W.S. (3d) 463 was allowed. 221 A.C.W.S. (3d) 774. Competition Law GENERAL Protocol did not prohibit police from calling plaintiff Plaintiff brought action seeking damages based on breaches of Competition Act, in restraint of trade resulting in damages. Parties were all in towing business. Parties all did towing for police detachment. Police requested towers who operated in county to set up single phone number that police could call in order to dispatch towing services for vehicles involved in accidents being investigated by police. Defendants set up association. They invited plaintiff to become member but plaintiff did not join association. As result, plaintiff was not on association's list of towers who would be dispatched when police called association for towing services. Plaintiff alleged that s. 45 of Competition Act (Can.), was breached by fixing prices; creating zones and controlling supply. Action dismissed. With respect to price fixing, there was no evidence that rates set out in guidelines set up by defendants had any effect on plaintiff 's business. Rate guidelines were not established to prevent competition, but were established to prevent gouging. Setting rate guidelines that prevented gouging would not prevent plaintiff from competing in same business, by offering same service for lower fee. Creation of zones could not have effect on plaintiff 's business. Creation of zones provided rational method to assist officers who must decide who to call. It kept towing protocol transparent. Creation of zones did not contravene s. 45 of act. Intent of protocol was not to control supply of service but to make provision of available supply efficient, economical, safe and transparent. Protocol established rational set of criteria to enable officer to make informed decision that affected rights and obligations of third parties, free of personal bias and interest. Protocol did not prohibit police from calling plaintiff. There was no breach of act. Dirstein Towing lnc. v. Streamline Auto Body Ltd. (Aug. 28, 2012, Ont. S.C.J., Belleghem J., File No. 313/10) 221 A.C.W.S. (3d) 837. LT

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