Law Times

Page 14 October 7, 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 Courts JURISDICTION Setting of rates for amici curiae by courts did not respect institutional roles Trial judges appointing amici curiae in four criminal proceedings and amici refusing legal aid rates offered by Attorney General . Court setting higher rates of remuneration than offered by Attorney General. Court of appeal dismissing Attorney General's appeal. Court of appeal holding superior and statutory courts had jurisdiction to appoint amici to ensure serious cases could proceed without difficulty. Court of appeal holding ability to fix rates of compensation for amici linked to capacity to appoint them and should not be left to Attorney General. Attorney General's appeal to Supreme Court of Canada allowed. Courts of inherent jurisdiction had power to appoint amici exceptionally where necessary for just adjudicate of proceeding. Inherent jurisdiction of superior courts permitted them to make orders necessary for protection of judicial process and rule of law and fulfill judicial function of administering justice. Jurisdiction to appoint did not necessarily imply authority to set rate of compensation. Absent authority flowing from constitutional challenge or statutory provision setting for rates by courts did not respect institutional roles and capacities of legislature, executive and judiciary. Order that Attorney General must provide compensation at particular rate order directing payment of specific money out of public funds. Attorney General and amici appointed should meet to set rates and modes of payment. If matter cannot be resolved judge's only recourse may be to impose stay until amicus could be found. R. v. Imona-Russell (Aug. 1, 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. 34317) 108 W.C.B. (2d) 211. FEDERAL COURT Administrative Law BIAS Nothing untoward in member questioning and challenging submissions Applicant born in Eritrea, but used different name on false Ethiopian passport he purchased. Applicant fled Eritrea, but deported back to Ethiopia. Applicant's claims for refugee status rejected in United Kingdom and Norway. On advice of Ethiopian translator, applicant did not mention prior unsuccessful refugee claims in Canadian PIF. Immigration and Refugee Board Member continued hearing despite applicant's claim of breach of natural justice in relation to translation, but re-commenced hearing de novo out of abundance of caution. Translator at hearing same translator who allegedly lied to applicant. Applicant also alleged bias on member's part by virtue of member's frequent interruptions. Member found no breach of natural justice because translation not tainted or inaccurate. Member concluded applicant not refugee due, in large part, to lack of identity documents. Application for judicial review dismissed. Applicant's adjournment request not for mere adjournment, but rather to terminate proceedings due to translation issue; member provided adequate reasons for continuing hearing. Interaction between applicant's counsel and member may have been sharp, These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. but were directed at clarifying counsel's submissions; nothing untoward in member questioning and challenging submissions. Member was not tainted by proceeding de novo after having heard first day of evidence; this was bare allegation without support. Endemikael v. Canada (Minister of Citizenship and Immigration) (Jun. 18, 2013, F.C., Michael L. Phelan J., File No. IMM-1119112) 229 A.C.W.S. (3d) 922. DUTY TO ACT FAIRLY Officer failed to put credibility concerns to applicant Applicant holds Master's Degree in civil engineering and listed occupation as construction manager found by immigration officer "not eligible for processing in this category". Officer found that fact that duties described by employment letter either copied or closely paraphrased from occupational descriptions of National Occupation Classification diminished overall credibility of employment letter and dismissed applicant's permanent residence application. Application for judicial review granted. Where application provides evidence sufficient to establish they meet requirements of Immigration and Refugee Protection Act (Can.), or Immigration and Refugee Protection Regulations (Can.), and officer doubts credibility, accuracy or genuine nature of information provided, and wishes to deny application based on those concerns, duty of fairness invoked. Officer denied applicant fairness by failing to put credibility concerns to applicant. Madadi v. Canada (Minister of Citizenship and Immigration) (Jun. 27, 2013, F.C., Russel W. Zinn J., File No. IMM-7043-12) 229 A.C.W.S. (3d) 1145. Impossible to determine whether any party truly made submissions Applicant, citizen of Iran, and his family were granted permanent resident status in Canada under entrepreneurial program. They returned to Iran for daughter to finish school. Daughter seriously injured in car accident in Iran. Applicant and daughter found to have breached residency obligation for failing to reside in Canada at least 730 days in five years. Applicant and daughter appealed immigration officer's decision to Immigration Appeal Division ("IAD") but only daughter successful. Applicant's application for judicial review granted. Hearing before division lost all semblance of order and procedure, proceeding in near total disarray. Impossible to determine from transcript what evidence, if any, properly before Division or whether any party truly made submissions. Applicant did not receive fair hearing. Shahlavi v. Canada (Minister of Citizenship and Immigration) (Jul. 4, 2013, F.C., Russel W. Zinn J., File No. IMM-9378-12) 229 A.C.W.S. (3d) 923. JUDICIAL REVIEW Member failed to ask whether state protection adequate in real terms Member of Immigration and Refugee Board denied refugee claim of Hungarian Roma husband and wife. Applicants suffered multiple incidents of discrimination based on Roma ethnicity in living conditions, schooling, work environment and general social interaction. Violent incidents involved skinheads and Hungarian guard. Applicants confirmed general feeling of helplessness due to state's unwillingness to provide real assistance. Member found applicants' story credible, but dismissed refugee claim on ground that Hungary would provide state protection or that applicants had not refuted presumption of state protection. Member discounted applicants' distrust of Hungarian authorities given their limited interaction with police. Application for judicial review granted. Decision included fulsome exploration of various institutions in place in Hungary, but dearth of consideration of effectiveness of those institutions. Member failed to ask whether state protection adequate in real terms. Evidence of improvements and progress insufficient to establish that improvements and progress amount to effective state protection. Record included numerous reports and comments on inadequacy of state protection for Romas, evidence of systemic failures to protect and of gap between laws and their implementation. Decision quashed and matter remitted back for redetermination by different member. Olah v. Canada (Minister of Citizenship and Immigration) (Jun. 5, 2013, F.C., Michael L. Phelan J., File No. IMM-8783-12) 229 A.C.W.S. (3d) 1141. Immigration EXCLUSION AND EXPULSION Officer not sensitive to applicant's unique and personal circumstances Application for judicial review of decision of Canada Border Services Agency ("CBSA") enforcement officer denying application to stay execution of removal order. Applicant was citizen of Guatemala who had been in Canada without status since 2007. Refugee claim, permanent residence application on humanitarian and compassionate considerations and pre-removal risk assessment were all denied. In 2010, applicant was diagnosed with rare colon cancer. She underwent emergency surgery, was treated with course of chemotherapy, and examinations were planned for coming years. Although applicant's medical condi- ORDER YOUR COPY TODAY AND ENTER TO WIN AN iPAD MINI** MORE DETAIL AND A WIDER SCOPE OF LEGAL CONTACT INFORMATION FOR ONTARIO THAN ANY OTHER SOURCE: Perfectbound • December 2013 SPECIAL PRICE $74 (Regular $77) L88804-626 • More than 27,000 lawyers • More than 9,000 law firms and corporate offices • Fax and telephone numbers, e-mail addresses, office locations and postal codes EARLY BIRD ORDERS MUST BE ACCOMPANIED BY CREDIT CARD PAYMENT EARLY BIRD MULTIPLE COPY DISCOUNTS 1-9 copies …………………………………………$74 10-49 copies ………………………………………$70.15 50-99 copies ……………………………………$67.84 100 or more copies ………………………$64.76 Multiple copy discounts available Shipping & handling plus applicable taxes are extra Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation * Offer expires December 15, 2013 • price is based on orders of 100 copies or more **available to new purchasers only Untitled-3 1 www.lawtimesnews.com 13-09-20 10:25 AM

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