Law Times

Page 13 Law Times • May 13, 2013 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 Air Law AIRPORTS Fact criminal charges against applicant stayed not determinative Application for judicial review of decision by Minister of Transport, Infrastructure and Communities refusing security clearance. In October 2010, applicant applied for security clearance required to work in restricted area of airport. Comprehensive background check to which applicant consented revealed applicant involved in drug investigation in 2006 or 2007. Records of investigation indicated applicant and husband arrested outside residence being searched by police. Search of vehicle of which applicant principal operator uncovered hidden compartment containing substantial quantities of cocaine, heroin, methamphetamine, ecstasy and loaded pistol. Husband pleaded guilty and charges against applicant stayed. Applicant denied any knowledge of husband's criminal activities. In response to opportunity to provide further information, applicant provided statement, reference letters and documents proving separation from husband in January 2011 and application for divorce. Minister refused security clearance on advice of advisory board which concluded applicant might "be prone or induced to commit an act or assist or abet any person to commit an act that might unlawfully interfere with civil aviation". Application dismissed. Discretion granted to Minister under s. 4.8 of Aeronautics Act (Can.), to grant, refuse, suspend or cancel any security clearance very broad. Decisions reviewable on standard of reasonableness. Air safety issue of substantial importance. Access to restricted areas of airports privilege, not right. In exercising discretion, Minister entitled to consider any factor deemed relevant including criminal charges that did not result in conviction and evidence of applicant's character and propensities. Fact criminal charges against applicant stayed not determinative. Details of incident supported reasonable belief applicant either aware of or willfully blind to husband's criminal activities. Not unreasonable to conclude granting applicant access to restricted area of airport might attract attention of husband or criminal associates. Thep-Outhainthany v. Canada (Attorney General) (Jan. 23, 2013, F.C., Donald J. Rennie J., File No. T-476-12) 224 A.C.W.S. (3d) 538. Citizenship APPEAL Event triggering abandonment is failure to attend second hearing Application for judicial review to quash administrative refusal to reopen application for citizenship after it was declared abandoned. On October 29, 2010, respondent had mailed applicant notice directing her to attend residence hearing on December 3, 2010. Applicant did not appear and on Feb. 24, 2011, respondent mailed applicant second notice to appear for residence hearing on April 1, 2011. Second notice advised applicant that it was final notice and that failure to appear would result in her application being closed and she would need to submit fresh application. Applicant did not appear. Applicant's file was administratively held in abeyance for 30 days before being forwarded to registrar to be recorded as abandoned. Thirtyday administrative grace period passed without any word from applicant. On June 6, 2011, file was recorded as abandoned by registrar. Applicant's counsel alleged he had sent letter to respondent dated May 25, 2011, indicating applicant's reasons for non-appearance, however letter was not in file. Letter dated July 28 2011 from applicant's counsel, was in file. Applicant contended that application for citizenship was not abandoned until such time as that application was forwarded to registrar pursuant to s. 11(9) of Citizenship Regulations (Can.), and that letter of May 25, 2011, had been sent before that date. Applicant also alleged high level of procedural fairness was applicable in citizenship cases due to prejudice caused to applicant, who must reapply for citizenship in case of abandonment. Application dismissed. Plain wording of s. 11(9) of Regulations is that event triggering abandonment is applicant's failure to attend second hearing, not act of file being recorded as abandoned in registrar's computer system. While result of abandonment may be unfortunate, it did not translate into higher level of procedural fairness. Procedural fairness was satisfied by sending applicant two letters advising her that she had to present herself at residency hearings, and, in case of second notice for hearing of April 1, 2011, that if she did not present herself at residency hearing, file would be closed and she would have to reapply. There was no reviewable error in subsequent administrative refusal to reopen file. Tareen v. Canada (Minister of Citizenship and Immigration) These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. (Jan. 16, 2013, F.C., Luc Martineau J., File No. T-1984-11) 224 A.C.W.S. (3d) 558. GENERAL Officer did not provide applicant with opportunity to respond to concerns Applicant and niece were born in Ghana. Applicant adopted niece according to village custom in 1998. Applicant left Ghana in 1998, becoming Canadian citizen in 2006. Niece resided with applicant's wife and mother in Ghana. Applicant returned to Ghana in 2009, when formally adopted niece. Applicant obtained October 2009 interim adoption order. Applicant sought Canadian citizenship for niece. Applicant provided two long form birth certificates for niece. One indicated applicant and wife were niece's parents. Registrar indicated certificate genuine. Other identified niece's birth parents. Registrar indicated certificate fraudulent. Officer invited additional information by deadline, and advised interim adoption order insufficient. Applicant requested extension of time to provide DNA test. Officer did not respond. Applicant obtained DNA test confirming status as uncle, and final adoption order. Information not considered by officer, because no extension of time granted. Officer denied citizenship on basis: biological parental rights not severed; adoption not final in accordance with law of Ghana; and evidence unreliable. Applicant's judicial review application allowed. By denying modest extension of time, officer did not provide applicant fair opportunity to respond to concerns. Officer doubted relationship between niece and applicant. DNA test would have been probative of relationship and accuracy of birth certificates. Unreasonable for officer to base decision on fact adoption order was interim. Order became final in October 2011 as interim order indicated and officer was advised. Atutornu v. Canada (Minister of Citizenship and Immigration) (Jan. 15, 2013, F.C., Donald J. Rennie J., File No. T-662-12) 224 A.C.W.S. (3d) 559. Constitutional Law CHARTER OF RIGHTS Auditors can continue to assess civil liability while criminal investigation unfolds Applicants were allegedly involved in tax plan operated by Independent Business Consultants Association ("IBCA"), in which business losses could be sold to other taxpayers. Canada Revenue Agency ("CRA") brought criminal investigawww.lawtimesnews.com tion of promoters of plan. CRA also conducted civil audits of applicants and asked them to provide relevant information and documents. However, none of them responded. As result, they received requirements for information ("RFIs"). None of them responded to those, either. Rather, applicants commenced proceedings seeking to overturn RFIs, applicants claimed that RFIs were improperly issued for purpose of gathering information for criminal investigation against them and that RFIs violated their right to remain silent protected under s. 7 of Canadian Charter of Rights and Freedoms. Application dismissed. Only one applicant individual was under criminal investigation at time RFIs were issued. There was no objective that evidence indicating that other applicants were under criminal investigation. Therefore, only individual's s. 7 liberty interests were engaged in this case. Mere fact that individual was under criminal investigation was not enough to defeat RFI. Auditors can continue to assess civil liability while criminal investigation unfolds. If auditors were forced to cease work after investigation commenced, taxpayers could avoid civil liability when their conduct raised concerns of criminal conduct. Predominant purpose of RFIs issued against applicants, including individual, was civil. Therefore, s. 7 Charter rights, specifically the right to remain silent and to avoid self-incrimination, were not engaged. Breau v. Minister of National Revenue (Oct. 17, 2012, F.C., James W. O'Reilly J., File No. T-162309, T-1625-09) 224 A.C.W.S. (3d) 831. Human Rights Legislation DISCRIMINATION No indication cheque's issuer influenced bank Complainant accused bank of discrimination on basis of race, religion and national or ethnic origin. Complainant accused bank of: inconsistently applying Hold Funds Policy; and asking inappropriate questions regarding source of deposited cheque and employment. Issuer of cheque had Muslim name. Complainant was insulted by bank's apparent concern cheque was fraudulent or would be dishonoured. Human Rights Commission appointed investigator. Investigator's report concluded bank acted in accordance with policy, and recommended dismissal of complaint. Parties each filed submissions in response to report. Commission dismissed complaint in Feb. 2011 under s. 44(3)(b) of Canadian Human Rights Act. Evidence established no link between conduct and prohibited ground. Complainant requested judicial review. Application dismissed. No procedural unfairness in investigation process. Investigator conducted fair and thorough investigation. Decision was reasonable. No indication race or religion of complainant or cheque's issuer influenced bank. Evidence was consistent with fair and reasonable application of hold policy. Ali v. Canada (Attorney General) (Jan. 15, 2013, F.C., Donald J. Rennie J., File No. T-360-11) 224 A.C.W.S. (3d) 735. Immigration INADMISSIBLE AND REMOVABLE CLASSES Reasonable grounds to believe applicant aided in homicide Minister's delegate determined applicant committed acts of nature and severity that applicant was not to be allowed to remain in Canada. Decision was founded in part on applicant's participation in homicide and double shooting. Applicant was denied permanent residence on humanitarian and compassionate ("H&C") grounds. Application for judicial review was dismissed. Applicant had adequate notice of evidence against applicant and case applicant had to meet. CBSA disclosed documents to applicant and invited response. Disclosure packaged contained documentation relating to homicide. Disclosure satisfied requirements of procedural fairness. Procedural fairness did not require disclosure to be triaged to identify evidence that might be of particular relevance to decision-maker. Delegate applied correct legal tests in concluding there were reasonable grounds to believe applicant aided in homicide and reasonably concluded that action among others showed applicant committed acts of substantial gravity. Conclusion reached by delegate was reasonably open to delegate. Delegate considered evidence relating to risk applicant might face if removed to country of origin and came to reasonable conclusion as to prospective risk. H&C decision reached was reasonably open to delegate on evidence and no reviewable error was identified on methodology, identification of relevant criteria or assessment of evidence. Muneeswarakumar v. Canada (Minister of Citizenship and Immigration) (Jan. 25, 2013, F.C., Donald J. Rennie J., File No. IMM-1574-11, IMM-1575-11) 224 A.C.W.S. (3d) 740.

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