Law Times

Page 14 May 6, 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. FEDERAL COURT OF APPEAL Extraordinary Measures MANDAMUS Mandamus available to prevent further delay and harm to inmate Court overturned Minister's decision denying inmate, Canadian citizen in low security jail in United States transferred to serve sentence in Canada. Minister found inmate was at risk to commit criminal organization offence; court quashed the Minister's refusal because in his reasons he did not demonstrate weighing of s. 10 of International Transfer of Offenders Act (Can.) factors, as he was required to do. Matter had been returned to Minister, who once again declined transfer; court found Minister paid lip service to appeal judgment, simply reasserted his earlier reasoning, was operating with closed, intransigent mind, and ordered Minister within 45 days to accept inmate's transfer request and confirm in writing to inmate that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada. Court found Federal Court's findings that Minister displayed closed mind and intransigency in his re-decision and paid lip service to court's earlier decision were factual findings supportable on basis of record; only live issue was whether, as matter of law, it was open to Federal Court to make mandatory order, rather than sending matter back for another re-decision. Appeal dismissed with costs. Court did not accept Federal Court restrained as suggested by Minister. Federal Court found Minister's conclusion that there was significant risk that inmate would commit criminal organization offence to be unsupported by evidence, and Crown did not contest this. With that factor off table, all that remained were factors supporting transfer. In circumstances, it was open to Federal Court to conclude on evidence that only lawful exercise of discretion was granting of transfer: in such circumstances, mandamus lies. In unusual circumstances of case, mandamus was also available to prevent further delay and harm that would be caused to inmate if Minister were given third chance to decide this matter in accordance with law. In circumstances where Minister did not follow court's earlier decision, paid "lip service" to it, and displayed "closed mind" and "intransigency". Federal Court's exercise of discretion in favour of making mandatory order against Minister had foundation in evidentiary record. Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 25, 2013, F.C.A., David Stratas J.A., Sharlow J.A., and Webb J.A., File No. A-39-13) Decision at 104 W.C.B. (2d) 769 was reversed in part. 105 W.C.B. (2d) 166. FEDERAL COURT Aboriginal Peoples BANDS Not unreasonable to require person seeking membership to have cultural ties to band Band membership committee revoked applicants' membership in band because applicants' names were entered on band list in error under s. 7 of Band Membership Code. Committee found applicants reached age of 18 when names were entered on list under provision of Code that applied only to applicants under age of 18. Application for judicial review was dismissed. Decision was not unreasonable for failing to comply with s. 10 of Indian Act (Can.) ("IA"). Two-part test of s. 7 of Code did not deny applicants right to have names entered on list. Two-part test was not inconsistent with s. 10(4) and (5) of Act. Applying two-part test to children of women whose membership was transferred to another band under s. 14 of former Indian Act (Can.), was not inconsistent with IA and fell within range of possible acceptable outcomes. Decision was not unreasonable in that it required applicants to apply for membership. When read in conjunction with provision for intertribal transfers in s. 10 of Code, two-part test was consistent with objective of maintaining economic stability while preserving cultural integrity and social harmony. It was not unreasonable for band to require person seeking membership under s. 7 of Code to have sufficient cultural ties to band. It was within range of possible acceptable outcomes for band to require such persons to join band while persons were young enough to be raised in order to strengthen cultural ties. Norris v. Matsqui First Nation (Dec. 12, 2012, F.C., Michel M.J. Shore J., File No. T-654-12) 224 A.C.W.S. (3d) 240. Immigration CONSULTANTS Egregious conduct by immigration consultant led to breach of fairness These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. Applicant came to Canada as farm worker on temporary foreign worker program. Applicant returned to country of origin. Applicant returned to Canada on visa and overstayed visa. Immigration consultant indicated immigration consultant was lawyer and had applicant sign blank forms. Immigration consultant called applicant once only to advise about requirements of pre-removal risk assessment application ("PRRA"). Immigration consultant told applicant it was not necessary to obtain supporting documents. Immigration consultant never showed applicant completed copy of PRRA. Applicant received negative PRRA. Officer determined applicant provided insufficient evidence to establish risk asserted. Officer found it unreasonable for applicant not to make refugee claim while applicant was on valid work permit. Officer found it unreasonable for applicant not to have submitted any supporting documentation. Application for judicial review was allowed. Facts of case presented egregious conduct by immigration consultant that led to breach of procedural fairness. Immigration consultant lacked any degree of professionalism and competence when it came to preparing applicant's PRRA. PRRA package submitted by immigration consultant was woefully inadequate. Not to allow applicant fair chance to have case assessed would be offensive to Canadian values. Brown v. Canada (Minister of Citizenship and Immigration) (Nov. 8, 2012, F.C., James Russell J., File No. IMM-3364-12) 224 A.C.W.S. (3d) 427. REFUGEE STATUS Not clear lawyer's incompetence caused reports not to be filed Application for judicial review of negative pre-removal risk assessment ("PRRA"). Applicant was citizen of Russia who claimed refugee protection in Canada based on her fear of political persecution in Russia. Board dismissed applicant's claim, concluding that her version of events was simply not credible. Applicant subsequently learned that her brother-in-law was beaten, shot and drowned in Russia and that her husband had been stabbed. Applicant alleged she obtained medical reports confirming both incidents. Applicant filed application for PRRA. Applicant hired lawyer to submit her PRRA application and alleged she gave medical reports to him, however lawyer denied receiving reports. Medical reports were never filed and as there was www.lawtimesnews.com no new evidence before officer and no documentary evidence supporting applicant's allegation of risk, officer dismissed her application. Applicant complained to Law Society of Upper Canada about her lawyer's failure to file medical reports in her PRRA application, however Law Society concluded that there was insufficient evidence of professional misconduct and dismissed complaint. Applicant applied for judicial review of PRRA decision on basis that she was denied natural justice because of her lawyer's incompetence. Application dismissed. While Law Society decision was not binding on court, neither could it be ignored. It was not clear that lawyer's incompetence caused medical reports not to be filed. Applicant did not respond to lawyer's contention that she had never provided him those reports. It was uncertain whether medical reports would have affected outcome of officer's decision. Applicant had already been found not to be credible and there was no evidence that incidents in reports had anything to do with applicant's allegation of risk. Court was not satisfied that applicant's counsel's conduct was incompetent or that his conduct resulted in miscarriage of justice. Moryakina v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2012, F.C., James W. O'Reilly J., File No. IMM-284112) 224 A.C.W.S. (3d) 430. Board's finding based on unacceptable stereotype Application for judicial review of denial of refugee claim. Applicant claimed to be homosexual who had been persecuted in Georgia by virtue of his sexual orientation. Board questioned applicant about his involvement in Toronto gay community and about his sexual activities. He testified that he was not active in gay community because of language limitations, stress and his commitment to his Georgian boyfriend. Board rejected claim because it did not believe that he was homosexual and found that if applicant were truly gay he would be involving himself in gay community activities. Application granted. Board's finding constituted plausibility finding that was based on unacceptable stereotype. Board was effectively saying that gay men were promiscuous and that they were incapable of living in monogamous relationships. Board also assumed that no gay man would choose to live outside of gay community. Idea that gay men were invariably promiscuous and incapable of establishing stable relationships was pejorative characterization and it coloured all of board's evidentiary findings, as well as its state protection finding. State protection analysis was also flawed because it was perfunctory and made without reference to evidence. Latsabidze v. Canada (Minister of Citizenship and Immigration) (Dec. 6, 2012, F.C., R.L. Barnes J., File No. IMM-3456-12) 224 A.C.W.S. (3d) 435. Industrial and Intellectual Property TRADEMARKS Competitor failed to establish trademark was confusing Appeal by competitor of trademark owner from decision of Registrar of Trademark dismissing opposition to registration of trademark. Competitor was bank that was initially established by Habib family in India in 1941. Trademark owner was related bank that was established by Habib family in Switzerland in or after 1967. Pakistan took control of competitor in 1974 and privatized it in 2003. Competitor continued to use name Habib while competing with trademark owner. Trademark owner registered trademark Habib Canadian Bank & Design and Habib Canadian Bank in Canada. Competitor unsuccessfully opposed registration of trademark. Appeal dismissed. Since there was no new evidence on appeal, standard of review was reasonableness. Proper application of evidentiary burden was not question of law falling outside of registrar's expertise. Applying legal standard to evidence was necessarily question of mixed fact and law. Further, registrar had expertise in determining whether there was evidence from which it could reasonably be concluded that ground of opposition was made out. Registrar had not erred in finding competitor failed to establish trademark was confusing with another trademark previously used in Canada by competitor. Competitor had only provided one concrete example of advertising in publication in Canada without providing any evidence of circulation of publication. Registrar had also reasonably concluded competitor failed to meet initial evidentiary burden on issue of distinctiveness. Fact that trademark owner had referred to something relevant to another potential issue was not sufficient to overcome competitor's failure to plead that particular issue. Habib Bank Ltd. v. Habib Bank AG Zurich (Jan. 21, 2013, F.C., Donald J. Rennie J., File No. T-4-12) 224 A.C.W.S. (3d) 467.

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