Law Times

Law Times • September 30, 2013 mined merits of application for judicial review. Motion to strike out portions of notice of application was dismissed. 876947 Ontario Ltd. v. Canada (Attorney General) (Jun. 14, 2013, F.C.A., K. Sharlow J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A., File No. A-524-12) 229 A.C.W.S. (3d) 677. Evidence PRIVILEGE Distinction between confidentiality and immunity from having to produce document Appellants claimed Sage-grouse was endangered species and wrote to Environment Minister, demanding he recommend emergency order under s. 80 of Species at Risk Act (Can.) ("SRA"), and identify further critical habitat through amendment to recovery strategy. Minister failed or refused so appellants commenced application requesting order of mandamus in relation to failure to recommend emergency order or amend recovery strategy as well as judicial review of Minister's refusals, concluding with request for document production. Respondents provided certification and objection, claiming government's decision not complete so premature to conclude Minister refused or failed to exercise duty. Certification and objection stated Governorin-Council has power to make emergency order, but decision protected by cabinet confidentiality. Certification and objection stated that documents before Minister in relation to s. 80 subject to cabinet confidence and objected to production. Appellants filed motion seeking order directing respondents to advise whether Minister had made decision and order declaring certification and objection invalid. Prior to hearing, respondents filed certificate pursuant to s. 39 of Canada Evidence Act ("CEA"), objecting to production of memorandum regarding consideration of emergency order and proposals to council on basis they contained confidences of Queen's Privy Council. Motion dismissed, but appellants' appeal allowed. Order for document production under Rule 317 of Federal Court Rules (Can.), cannot be made where no order which can be subject of application. In context of mandamus, only failure to make decision is in issue and documents before decision-maker, therefore was irrelevant. Appellants not entitled to document production under Rule 317. There is distinction between confidentiality and immunity from having to produce document or communication for purposes of litigation. Confidentiality alone does not confer privilege or immunity. Respondents claimed Crown immunity solely on basis of s. 39 of CEA, but s. 80 of SRA leaves open possibility that Minister may not be satis- Page 17 caselaw fied that species faces imminent threat, in which case Minister entitled to decide that no recommendation for emergency order should be made. Minister's decision not to make recommendation not within terms of s. 39 of CEA. Nor does s. 39 apply if Minister not yet decided whether to make recommendation. No legal basis for Minister's refusal to disclose whether or not decision had been made. Alberta Wilderness Assn. v. Canada (Attorney General) (Aug. 1, 2013, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and Robert M. Mainville J.A., File No. A-322-12) 229 A.C.W.S. (3d) 874. laration that policy permitted settlement involving return of land, including Crown purchasing land from willing sellers on voluntary basis and returning it to applicant. There was declaration that duty of good faith required Crown to acknowledge distinction between scope of administrative action available to it under policy, as opposed to action it chose to take. Mohawks of the Bay of Quinte v. Canada (Minister of Indian Affairs and Northern Development) (Jun. 18, 2013, F.C., Donald J. Rennie J., File No. T-951-10) 229 A.C.W.S. (3d) 615. FEDERAL COURT JUDICIAL REVIEW Alleged disabilities of applicant's son played no part in decision to call in mortgage Applicant sought judicial review of decision of Human Rights Commission. Applicant was retired school teacher. He purchased home and secured mortgage from respondent bank. At later time bank called in mortgage loan under circumstances that led applicant to file complaint to commission against bank. Home was renovated to expand growing of allegedly approved medical marijuana. Commission found that several of terms of mortgage agreement were breached. Commission found that bank's decision to call in mortgage was not based on prohibited ground of discrimination but was based on breach of contract. Commission concluded it was plain and obvious that there was no prima facie case of discrimination and applicant's complaint against bank was dismissed. Application dismissed. Applicable standard of review was reasonableness. Parties had ample opportunities to make submissions. Decision was reasonable. Bank was made aware that changes made and proposed to be made were to accommodate growing of allegedly approved medical marijuana, but changes were substantial and were made without consent of bank. Changes had effect of considerably reducing value of property. Alleged disabilities of applicant's son played no part in bank's decision to call in mortgage. It was reasonable for commission to conclude that there was no discrimination against applicant. McIlvenna v. Bank of Nova Scotia (Jun. 18, 2013, F.C., Roger T. Hughes J., File No. T-841-12) 229 A.C.W.S. (3d) 826. Aboriginal Peoples CROWN RELATIONSHIP To extent that respondent mischaracterized policy, he fettered discretion Applicant sought declaratory relief respecting respondent's duty to negotiate in good faith. Applicant occupied territory that was part of original tract granted to First Nations by treaty. Applicant alleged that 923-acre parcel of land within original tract was wrongfully alienated by Crown in 1837. Respondent accepted claim for negotiation in 2003 in accordance with criteria of specific claims policy. Claim remained unresolved. Applicant claimed that respondent was in breach of fiduciary duty to negotiate in good faith. Applicant sought declaration that aspect of duty to negotiate in good faith was that respondent had to consider all possible options, including acquisition of third parties' interests in tract and returning land to applicant. Application granted. Court could not interfere with negotiations or dictate that respondent take specific negotiation position. Under policy respondent could negotiate on basis of land, monetary compensation or mix of each. Respondent could decide what negotiation position he would take but duty to negotiate in good faith precluded him from publicly mischaracterizing policy. Respondent publicly stated that policy did not permit land-based settlement, only financial compensation, which was incorrect. Policy explicitly contemplated acquisition and return of land. To extent that respondent misread or mischaracterized policy, he fettered discretion. In light of respondent's public statements, declaratory relief was appropriate. Respondent's mischaracterization of policy affected perception of other residents in broader community who might see applicant as intransigent and demanding. Misstating tools available to respondent might impede settlement and reconciliation. Declaration to clarify governing policy had utility. There was dec- Human Rights Legislation Immigration JUDICIAL REVIEW Applicant need not seek state protection if it would not have been forthcoming Application for judicial review to set aside negative pre-removal risk assessment ("PRRA"). Applicant was citizen of Saint Lucia, where she experienced abuse at hands of her boyfriend. Applicant fled to Canada and www.lawtimesnews.com obtained visitor's visa. She did not know that she could claim refugee protection. Attacks were verified by physician and psychiatrist. PPRA officer accepted that applicant had been attacked, but found she had not rebutted presumption of state protection and therefore refused her application. Application granted. PPRA officer's conclusion on state protection was not reasonable. Officer erred in treating applicant's failure to seek state protection as being fatal to her refugee claim. Applicant need not seek state protection if evidence indicated it would not reasonably have been forthcoming. Officer gave minimal consideration to applicant's subjective fear and possibility that she could face increased violence, or even death, if she approached police. Officer erred in relying on non-government agencies such as Saint Lucia Crisis Centre and National Organization of Women, which offered advocacy, referrals and shelter. Those organizations did not provide protection. Officer also erred in disregarding relevant evidence on country conditions in Saint Lucia. Such evidence provided context for assessing whether applicant could reasonably expect state protection. Matter was referred back to Citizenship and Immigration Canada for reconsideration before different PPRA officer. Aurelien v. Canada (Minister of Citizenship and Immigration) (Jun. 26, 2013, F.C., Donald J. Rennie J., File No. IMM-1066112) 229 A.C.W.S. (3d) 828. REFUGEE STATUS Board erred by not identifying risk with any precision Applicant, Mexican citizen, was found not to be Convention Refugee or person in need of protection. Issue on application for judicial review was whether board's finding that risk applicant was facing was "faced generally by other individuals in or from that country" as described in s. 97(1)(b)(ii) of Immigration and Refugee Protection Act (Can.), was reasonable. Judicial review allowed. Board erred by not identifying risk facing applicant with any precision. It appeared to have accepted that applicant faced risk of violence or death at hands of gang members who had been tracking him, but made no mention of why they appeared so determined to kill him. Board also erred in holding that even heightened risk was still generalized risk and fell under exception in s. 97 of Act. Court has not held that all heightened risks due to targeting are still generalized risks. Board failed to accurately describe risk facing applicant and then engage in assessment based on documentary evidence about how prevalent that risk was in Mexico. Aguilar v. Canada (Minister of Citizenship and Immigration) (Jun. 26, 2013, F.C., Russel W. Zinn J., File No. IMM-9778-12) 229 A.C.W.S. (3d) 835. ONTARIO CIVIL DECISIONS Civil Procedure CLASS ACTIONS No rational relationship between identified class and proposed common issues Appellants appealed Divisional Court's decision upholding refusal to certify proceeding as class action. Appellant was problem gambler. He signed self-exclusion form that was provided by respondent. Respondent undertook to use best efforts to deny appellant entry to facilities, but it excluded liability if it failed to do so. Appellant returned to respondent's facilities on regular basis for over three years to gamble and he lost significant sums of money. Appellant claimed that respondent failed to exercise best efforts to exclude him from facilities. Causes of action included breach of contract, negligence and occupiers' liability. Appellants sought to certify action under Class Proceedings Act, 1992 (Ont.). Motion judge concluded that proposed class action disclosed cause of action but failed to satisfy other criteria required for certification. Fatal problem identified was that, at core, claims all rested on proposition that each class member was vulnerable, pathological problem gambler, which was something that could only be determined on individual, case-by-case basis. On appeal, Divisional Court agreed with motion judge that requirements for certification were not met. Appeal dismissed. Need for individualized inquiry was so pervasive that it overwhelmed appellants' attempt to treat it as case of systemic wrong. Claims advanced inevitably required individual inquiry into nature, degree and consequences of each class member's gambling propensity. This was not case where class action would be appropriate procedure to deal with systemic wrong. Issue of respondent's fault could not be usefully or fairly determined in abstract and without reference to circumstances of each individual class member. Proposed class definition was over-inclusive. There was no rational relationship between identified class and proposed common issues. Significance of any determination as to respondents alleged wrongful conduct was trumped by need to focus on individual issues of vulnerability and would not amount to substantial ingredient of class member's claim. Class action was not preferable procedure. Litigation plan was inadequate. Dennis v. Ontario Lottery and Gaming Corp. (Jul. 31, 2013, Ont. C.A., K.M. Weiler J.A., Robert J. Sharpe J.A., and Paul Rouleau J.A., File No. CA C55923) Decision at 209

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