Law Times

Page 16 September 30, 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. SUPREME COURT OF CANADA Civil Procedure AFFIDAVITS Nothing inherent in documents that would render translation impracticable Prior to litigation, exhibits to affidavits written in French prepared by appellants describing their roles in protection of French-language education in British Columbia. In subsequent action alleging violation of French language education rights as guaranteed by Charter, appellants applied to have exhibits introduced into evidence to demonstrate they had standing. Based on English statute received into colonial law of B.C. ("1731 Act") and Rule 22-3 of Supreme Court Civil Rules (B.C.), which require court "proceedings" and any "document prepared for use in the court" to be in English, British Columbia objected to admission of exhibits without accompanying translations. Chambers judge denied application and appeals dismissed. British Columbia legislature repeatedly confirmed codification of principle relating to reception of English law. Clear wording of 1731 Act indicates application to specific listed documents, but also to "proceedings", including admission of evidence. "Proceedings thereon", "proceedings relating thereto" and "all proceedings whatsoever" not limited to procedural aspects but include taking of evidence. Nor should these words be restricted by limited class presumption, which does not apply where item at issue separated from main list. Law and Equity Act (B.C.), provides that laws of England "as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force". Test for applicability based on suitability as of date of reception, not necessity. 1731 Act satisfied test. At that time in British Columbia, government operated in English; rule requiring court proceedings in English not unsuitable. 1731 Act received into law and not modified either explicitly or implicitly. Implied repeal occurs if subsequent legislation occupies field but no legislation occupied field of 1731 Act in context of civil proceedings. Subject matter of 1731 Act is language used in court proceedings. Rule 22-3 of Supreme Court Civil Rules and Rule 53 of Court of Appeal Rules (B.C.), relate to documents used in court but do not occupy field of language for court proceedings. Charter reflects importance of language rights but provides only that legislatures may act to advance use of English and French and court should not impose such initiative. Rule 22-3 requires exhibits in English. Exhibits became part of document prepared for use court once attached to affidavits. Discretion to admit documents if compliance "impracticable" but nothing inherent in documents that would render translation impracticable. Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Jul. 26, 2013, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34908) Decision at 216 A.C.W.S. (3d) 60 was affirmed. 229 A.C.W.S. (3d) 642. Immigration REFUGEE STATUS Criminal responsibility does not capture complicity by mere association Applicant, financial attache with These cases may be found online in BestCase and other electronic resources from www.carswell.com. To subscribe, please call 1-800-387-5164. government of Democratic Republic of Congo ("DRC"), became leading Permanent Mission of DRC at United Nations, but resigned and fled to Canada, claiming DRC government corrupt and violent. Refugee Protection Division found applicant excluded from definition of "refugee" under art. 1F(a) of Refugee Convention on basis he was complicit in crimes against humanity committed by DRC government. Federal Court allowed application for judicial review, but certified question whether there is complicity by association in crimes against humanity. Federal Court of Appeal held that by remaining in position without protest and continuing to defend interests of government, despite being aware of crimes committed by government, senior official demonstrates personal and knowing participation and is complicit. Applicant's appeal allowed and matter remitted to Immigration and Refugee Board for redetermination. Approach to art. 1F(a) of Refugee Convention must reflect overarching and clear human rights object and purpose, but Immigration and Refugee Protection Act (Can.), guards against abuses by denying refugee protection to international criminals. Two aims properly balanced by contribution-based test for complicity which requires voluntary, knowing and significant contribution to crime or criminal purpose of group. Applying international law, relevant both for elements of offences and potential modes of commission, individual criminal responsibility does not capture complicity by mere association or passive acquiescence, rather, link between individual and crime or criminal purpose required. Complicity based on intentionally or knowingly contributing to group's crime or criminal purpose. With respect to joint criminal enterprise, significant contribution to group's crime or criminal purpose, made with some subjective awareness, is required. Federal Court of Appeal endorsed overextended approach to complicity, one that captured complicity by association or passive acquiescence. To exclude claimant from "refugee", there must be serious reasons for considering claimant voluntarily made significant and knowing contribution to organization's crime or criminal purpose. Board will determine significant factors based on application, subject to unique evidentiary standard contained in art. 1F(a). Ezokola c. Canada (Ministre de la Citoyenneté & de l›Immigration) (Jul. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34470) Decision at 204 A.C.W.S. (3d) 143 was reversed. 229 A.C.W.S. (3d) 836. FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Fact decision interlocutory not basis for striking out portions of notice of application Appeal from decision upholding order made by prothonotary that struck out portions of appellants' fresh as amended notice of application. Application arose out of investigation allegedly conducted on behalf of Minister of Environment by Environmental Enforcement Directorate of Environment Canada ("EED") as result of application made to it pursuant to s. 17 of Canadian Environmental Protection Act, 1999 ("CEPA"). Appellants asserted that there was no valid basis on which to commence and continue investigation, EED failed to discontinue investigation, or alternatively, EED failed to produce reports required by CEPA. Respondent moved to strike portions of amended notice of application on grounds that Federal Court lacked jurisdiction to review decision of EED because investigation undertaken pursuant to s. 18 of CEPA was criminal investigation, and that decision by officer of EED to undertake investigation was not "decision" within meaning of s. 18.1 of Federal Courts Act (Can.). Prothonotary and judge struck out allegations relating to improper commencement and continuation of investigation, as well as allegation that EED failed to discontinue investigation. All claims for relief were struck out except for request for writ of mandamus requiring Minister to provide appellants with copy of written report describing information obtained during investigation and stating reasons for its discontinuation. Appeal allowed. Evidentiary record before judge did not provide sufficient evidentiary basis for conclusion that decision did not cause appellants to suffer prejudicial effects. Fact that decision was interlocutory in nature was not basis in law for striking out portions of notice of application. Rather, it was ground on which court may decline to exercise its discretion to grant remedy when it determined merits of application for judicial review. Similarly, fact that there was alternate remedy was not basis in law for striking out portions of notice of application. It was ground on which court may decline to exercise its discretion to grant remedy when it deter- Get fast and easy access to l t yo ble to y u s and itt's availa a day. 24 hours Canada's legal professionals! Canada's most comprehensive online directory of legal professionals gives you a direct route to the information you need. departments location and area of practice Visit www.CanadianLawList.com and find out how we're serving you better than ever. compiled by top Canadian legal researchers Untitled-1 1 www.lawtimesnews.com 13-01-03 9:02 AM

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