Law Times

Page 14 September 9, 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 Air Law AIRPORTS Not necessary that criminal conviction be made in respect of underlying charges This was application for judicial review of director's decision. Applicant was employed at airport and was granted airport security clearance. After security clearance was renewed, applicant was advised it would be reviewed because adverse information had been made available that raised concerns about his suitability to retain clearance. Police had found applicant in passenger seat of vehicle with $2,500 cash and 471 grams of marijuana. Applicant was charged with possession of controlled substance for purpose of trafficking. Charge was withdrawn. Director cancelled applicant's transportation security clearance, which prevented his continued employment at airport. Application dismissed. There was no breach of procedural fairness. Applicant was advised of information that would be considered and was given opportunity to make representations, which he did. It was not necessary that criminal conviction be made in respect of underlying criminal charges in order for allegations to be relevant to decision to cancel security clearance. Applicant did not challenge underlying facts for charges made against him even though he was given opportunity to do so. Decision to cancel security clearance was reasonable. Peles v. Canada (Attorney General) (Mar. 21, 2013, F.C., Michael D. Manson J., File No. T-103012) 228 A.C.W.S. (3d) 314. Crown PREROGATIVE No legal duty to consult with applicants before proceeding with policy Governor changed rules relating to health coverage for privately sponsored refugees under order. Applicants sponsored refugees under agreement with Minister. Applicants sought challenged order arguing order could not apply to refugees who were sponsored before order came into effect because order breached contract between applicants and Minister. Applicants argued order was ultra vires, breach duty of fairness, and violated Canadian Charter of Rights and Freedoms. Application for judicial review was dismissed. There was no breach of contract. Agreement did not specify particular level of healthcare services. Order enacted under Crown's prerogative power was reviewable on constitutional grounds, but not otherwise. Breach of contract would give rise to action in damages, but would not invalidate order. Order was not ultra vires. Exemption from inadmissibility on medical grounds did not guarantee members of refugee abroad class would be exempt from all medical costs or would be guaranteed particular level of healthcare coverage in Canada. Order could not be characterized as breach of undertakings by Minister because Minister was not party to sponsorship undertakings. Duty of fairness was not breached. Governor in Council had no legal duty to consult directly with applicants before proceeding with policy reflected in order considering relatively small number of persons and modest amounts involved. Consultations with sponsors took place before order came into effect. Applicants had no standing to raise issue under These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. Charter. There was no evidentiary basis on which to adjudicate applicants' rights under Charter. There was another proceeding underway in which issues could be determined on basis of proper factual record. Hospitality House Refugee Ministry Inc. v. Canada (Attorney General) (May. 24, 2013, F.C., James W. O'Reilly J., File No. T-137812) 228 A.C.W.S. (3d) 425. Immigration REFUGEE STATUS Error of law in applying wrong or confused threshold and test Application for judicial review of denial of refugee claim. Applicants were male Tamil citizens of Sri Lanka who alleged fear of Eelam Peoples Democratic Party ("EPDP"), Tamil paramilitary group that supported government in civil war against Liberation Tigers of Tamil Eelam ("LTTE"). Applicants alleged that EPDP suspected applicants were supporters of LTTE and applicants had been detained and beaten by EPDP. Board found applicants lacked credibility and their fear was not well-founded. Board found that applicants had no nexus with Convention ground under s. 96 of Immigration and Refugee Protection Act (Can.), because their claims were based on criminality and extortion. As to s. 97, board found that risk faced by applicants was excluded as it was generalized risk. Applicants contended that board applied test for risk under s. 97 in confused manner such that court could not determine which test had been applied. Application allowed. Board's assessment of applicants claim was flawed on numerous grounds. Board committed reviewable error of law in applying wrong or confused threshold and test for claim under s. 97. Board committed reviewable error of fact in determining that applicants were targeted on basis of crime and extortion alone. This unreasonable determination informed board's nexus analysis and its assessment of danger of torture, along with its alternative findings about change in circumstances and generalized risk. Accordingly, application for judicial review was allowed. Where court is left in doubt as to which standard of proof or legal test was applied, new hearing can be ordered. Rajadurai v. Canada (Minister of Citizenship and Immigration) (May. 22, 2013, F.C., Cecily Y. Strickland J., File No. IMM5030-12) 228 A.C.W.S. (3d) 530. Pensions MINIMUM STANDARDS Number and frequency of absences from Canada critical Application for judicial review of decision denying entitlement to Old Age Security Pension ("OAS"). Applicant born in India in 1935 and immigrated to Canada in 1997. Applicant remained citizen of India but granted permanent resident status in Canada in 2003. Since 1997, applicant divided time between India and Canada, residing in one room of son's house while in Canada. None of applicant's absences from Canada exceeded one year except one in which applicant spent some 19 months, from October 2003 to June 2005, in India doing volunteer work. Since 1997, applicant did not declare any significant income in Canada except in 2006 ($12,382) and 2007 ($6,983). Applicant owned no property in Canada. Applicant's current passport, issued by Republic of India in 2005, listed applicant's address as ancestral home in India although applicant claimed to have gifted share in home to brother in exchange for financial assistance. In 2007, applicant applied for OAS and Guaranteed Income Supplement. Application dismissed on basis applicant had not resided in Canada for required ten years. Applicant submitted second application, attaching letter and documents to substantiate residence. Application dismissed again on basis passport stamps indicated residential ties to India not Canada. Application for reconsideration dismissed because applicant present in Canada for majority of time since August 1997, but maintained no permanent residence in Canada during relevant period. Applicant appealed. Stressing applicant's numerous, regular and lengthy trips back to, and continuing significant ties with, India, review tribunal found applicant not entitled to OAS since evidence failed to establish residence in Canada for aggregate of ten years. On application for review, applicant submitted tribunal placed too much emphasis on frequency of trips to India, erred in questioning validity of transfer of ancestral home, erred in requiring applicant to demonstrate ties to Canada in form of personal or real property and submitted all absences from Canada could be justified under s. 21 of Old Age Security Regulations (Can.). Application dismissed. While residency question of fact requiring examination of entire circumstances of person under scrutiny, no authority for applicant's proposition one factor could not be considered determinative. Number and frequency of absences from Canada critical. Address on passport and validity of transfer of ancestral home, along with property and income in Canada, part of circumstances but not determinative. Even if findings in error, not enough to render decision unreasonable. No evidence to establish applicant's trips to India could be justified as "missionary" work within REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ENCHANCE YOUR LISTING TODAY! Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. With more than 218,000 page views and 51,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com AVAILABLE ONLINE AND IN PRINT Untitled-3 1 www.canadianlawlist.com www.lawtimesnews.com 13-07-12 10:17 AM

• Cover