Law Times

Page 12 June 24, 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 Administrative Law BOARDS AND TRIBUNALS Tribunal had no authority to compel negotiations Applicant reversed bargaining position and refused to bargain minimum fees for right to use existing works with respondent after having done so for many months. Tribunal found applicant failed to bargain in good faith. Tribunal refused to exercise discretion in declaring copyright could be subject matter of scale agreement under Status of the Artist Act (Can.) ("SAA"). Application for judicial review was allowed. Tribunal had no authority to compel negotiations or deal with such negotiations. Jurisdiction could not be conferred by consent. Matters relating to copyright including imposition of minimum fees for use of existing works did not fall within SAA. Applicant could not agree to scale agreement affecting copyrights and applicant's refusal to pursue negotiations relating to matters could not be attributed to failure to negotiate in good faith. Pelletier dissented and would have dismissed application for judicial review finding conclusion that applicant failed to bargain in good faith was reasonable and interpretation even to "provision of services" by tribunal did not create conflict between SAA and Copyright Act (Can.). National Gallery of Canada v. Canadian Artists' Representation (Mar. 4, 2013, F.C.A., Marc Noël J.A., Johanne Trudel J.A., and J.D. Denis Pelletier J.A., File No. A-84-12) 226 A.C.W.S. (3d) 557. FEDERAL COURT Customs and Excise SEIZURE Conveyances at issue are not exempt from seizure Plaintiffs consisted of 115 individual members of Mohawks of Akwesasne and their elected community government, Mohawk Council of Akwesasne ("MCA"). Mohawks of Akwesasne are recognized as "Indians" under Indian Act (Can.) ("IA"), and group as "aboriginal people" within meaning of s. 35 of Constitution Act, 1982. They have reserve territory that spans across Provinces of Ontario and Quebec (Reserve Nos. 59 and 15, respectively), and into State of New York. Cornwall Island is entirely within Reserve No. 59 in Ontario. Only practical way to cross by land between Reserve Nos. 15 and 59 is by crossing International Bridge into United States. Akwesasne community comprise up to 70% of border traffic at Cornwall Point of Entry ("POE"). Cornwall POE is eleventh busiest land border crossing in Canada in terms of number of people processed annually. It has also been identified by Canada Border Services Agency ("CBSA") as port with high risk for illegal activities, such as smuggling. On September 18, 2009, CBSA began active enforcement of reporting requirement. This enforcement involved seizing vehicles that had allegedly been used to transport persons into Canada, who then failed to report to POE. Each plaintiff was lawful owner of vehicle seized by CBSA. At all material times, each plaintiff was ordinarily resident of Canadian Reserves. Between September 18, 2009, and April 30, 2010, vehicle owned by each of 115 individual plaintiffs was seized for failing to report to POE, as required by Customs Act (Can.) ("CA"). CBSA subsequently released vehicle when driver or, more frequently, MCA, paid specified amount for its release. In most cases, this amount was set at $1,000. Plaintiffs brought proceedings pertaining to seizure of their vehicles. Joint motion was brought for preliminary determination of question of law: does seizure of vehicles by CBSA at POE at Cornwall constitute unreasonable interference with plaintiffs' privacy interest; are plaintiff 's vehicle protected from seizure by s. 89 of IA; and does CBSA official who made final determination regarding plaintiff 's appeals (i.e. of finding that vehicle was used in contravention of CA and confirmation of forfeiture of assessed amount held in exchange for release of vehicle) have properly delegated authority to make such a decision?. Seizure of vehicles by CBSA at POE at Cornwall does not engage right to be secure against unreasonable search or seizure under s. 8 of Canadian Charter of Rights and Freedoms, and cannot, therefore, constitute violation thereof. As CA provisions at issue constitute civil proceedings, this case does not meet even basic threshold to engage s. 8 of Charter. Seizures effected under CA are beyond scope of protections in s. 89 of IA, and conveyances at issue are not exempt from seizure. CBSA's use of civil remedies provided for in CA to enforce border legislation does not fit within scope of s. 89. Such action is distinct from other mechanisms listed in s. 89 of IA, including mortgages, levies and execution of civil judgments. These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. CBSA official who made final determination regarding plaintiffs had properly delegated authority to make such a decision. Mohawk Council of Akwesasne v. Canada (Minister of Public Safety and Emergency Preparedness) (Dec. 6, 2012, F.C., D.G. Near J., File No. T-859-12) 226 A.C.W.S. (3d) 416. Immigration INADMISSIBLE AND REMOVABLE CLASSES As long as applicant could not be open about health condition, he was danger to public Application for judicial review of decision by Citizenship and Immigration Canada ("CIC"), whereby applicant was determined to represent danger to public in Canada pursuant to s. 115 of Immigration and Refugee Protection Act (Can.). Applicant was citizen of Zimbabwe who came to Canada in 2001 with assistance of Canadian woman he had met in Zimbabwe. Applicant subsequently tested positive for HIV in 2001, and subsequently admitted to having been HIV positive since 1995. Applicant entered into succession of relationships with women without disclosing his HIV status. Applicant was convicted on four counts of aggravated sexual assault and was sentenced to ten years of incarceration with credit for time he had spent in custody. Immigration Division issued deportation order against applicant based on his inadmissibility for serious criminality. In October 2009, Canada Border Services Agency issued warrant for applicant's removal from Canada. In July 2012, officer from CIC determined that applicant had committed serious crime and constituted danger to public in Canada, pursuant to s. 115(2)(a) of Act. CIC concluded that applicant had made habit of hiding his health condition and that as long as he could not be open about it, he constituted danger to public. Application dismissed. Determinations of CIC that applicant presented danger to public in Canada, its risk assessment of applicant's situation and its analysis of humanitarian and compassionate considerations were reasonable. Mzite v. Canada (Minister of Citizenship and Immigration) (Mar. 19, 2013, F.C., Simon Noël J., File No. IMM-7797-12) 226 A.C.W.S. (3d) 527. REFUGEE STATUS Board failed to assess whether risk of kidnapping constituted gender-based persecution Applicant was denied refugee status. Board recognized possiwww.lawtimesnews.com bility of being raped amounted to persecution, but determined applicant did not fit profile of those at risk of rape. Board did not mention Gender Guidelines. Board found applicant possibly faced heightened risk of kidnapping. Application for judicial review was allowed. Board failed to assess whether risk of kidnapping might constitute gender-based persecution which was necessary because there was evidence indicating women were disproportionately at risk of rape if kidnapped. Desire v. Canada (Minister of Citizenship and Immigration) (Feb. 15, 2013, F.C., Mary J.L. Gleason J., File No. IMM-1197-12) 226 A.C.W.S. (3d) 533. Board relied on improperly made plausibility findings Applicant was denied refugee status. Board found applicants were not credible and applicants were not objectively at risk of sterilization. Board found documents provided were fraudulent. Application for judicial review was allowed. Decision was unreasonable. Board's findings were based on microscopic examination of applicants' evidence and unsupported evidence. Member unreasonably concluded that date document was stamped was date abortion was performed and applicant's testimony was not inconsistent with documents. Assumption that there would be some family planning documentation was without foundation. Applicants' story was plausible based on evidence. Decision lacked valid reasons for rejecting applicant's sworn testimony and documents and board relied on improperly made plausibility findings. Cao v. Canada (Minister of Citizenship and Immigration) (Feb. 19, 2013, F.C., Russel W. Zinn J., File No. IMM-4528-12) 226 A.C.W.S. (3d) 537. Panel erred by failing to address recent rise of hate speeches and demonstrations Application for judicial review of denial of refugee claim. Applicant was Roma citizen of Hungary who alleged fear of persecution in Hungary by reason of his Roma ethnicity. Applicant alleged that he was attacked by skinheads one day as he was walking down the street with his wife. Applicant alleged that he filed complaint with police but they told him that they could not do anything since assailants could not be found. When questioned about this incident by panel, applicant stated at hearing that during his visit to police station no complaint or formal report of incident was prepared and no further action or investigations that he knew of were taken by police. Applicant alleged that Hungarian police systematically refused to take action in connection with complaints from members of Roma community, unless they were paid by victims. Applicant further asserted that Hungarian police allowed Hungarian Guard to march against Roma and his family was threatened by them or by skinheads several times. Applicant did not report those incidents to police. Panel concluded that there was no persuasive evidence before it to establish systematic pattern of conduct on part of Hungarian law enforcement authorities and government that demonstrated lack of state protection for Romani victims of ethnic violence. Panel found that applicant had failed to rebut presumption of state protection, and thus failed to satisfy burden of establishing that he was Convention Refugee or person in need of protection under ss. 96 and 97 of Immigration and Refugee Protection Act (Can.). Applicant contended that sharp rise of hate speeches and racist demonstrations against Roma and continuing acts of racially motivated violence were evidence of state's failure to prevent persecution and should be seen as indication of inadequate protection. Application was allowed. Panel erred by failing to address and deal with evidence of recent rise of hate speeches and racist demonstrations which had lead to increased instances of acts of violence against Roma. This recent evidence, Amnesty and ECRI reports, was important part of applicant's case as it contradicted adequacy of state protection in applicant's circumstances. Molnar v. Canada (Minister of Citizenship and Immigration) (Mar. 22, 2013, F.C., Jocelyne Gagné J., File No. IMM-3925-12) 226 A.C.W.S. (3d) 542. SELECTION AND ADMISSION Duty of fairness breached by non-disclosure of extrinsic evidence Application for judicial review of refusal of permanent residence application, following finding that applicant and her spouse and daughters did not meet requirements to be members of Convention Refugee abroad class or members of humanitarian protected persons abroad designated class. Applicant and her family were citizens of Ethiopia. Applicant, husband and daughters made refugee application from Djibouti. During interview applicant gave vague and contradictory evidence regarding ex-husband, although she had

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