Law Times

Law Times • October 21, 2013 man, aged 27, was never married. Respondent was refused application for permanent residence in family class made by conjugal partner. Officer was not satisfied conjugal relationship existed between two men because there was no marriage-like relationship. Officer concluded relationship was entered into primarily for purpose of acquiring status or privilege under Immigration and refugee Protection Act (Can.). Panel allowed respondent's appeal. Minister sought to set aside sponsorship decision. Application for judicial review was allowed. Panel had duty to determine whether relationship between two men was conjugal one. It was unreasonable on part of panel to conclude conjugal relationship existed for year. Panel erred in finding two men shared life together through computer. Panel erred in analysis that relationship between two men was not entered into with primary purpose of acquiring status of permanent resident. Panel should have considered both parties' intentions. Panel should not have ignored evidence before officer. Canada (Ministre de la Citoyenneté et de l›Immigration) c. Morel (Nov. 29, 2012, F.C., François Lemieux J., File No. IMM-965711) 230 A.C.W.S. (3d) 243. PERSON IN NEED OF PROTECTION Credibility findings made in perverse or capricious manner Applicants were denied refugee protection. Panel found applicants' claims were not credible. Applicants participated in protest in Canada. Panel did not consider applicants to be refugee sur place. Panel concluded presence of applicants at one demonstration in Canada would not put applicants at risk should applicants return to country of origin. Application for judicial review was allowed. On issue of whether applicants were refugees sur place or had reason to fear persecution as failed refugees, panel based findings on evidence form 2005 and not evidence from 2009. Credibility findings were made in perverse or capricious manner. Panel failed to consider evidence of internet activities. Translation errors could have influenced panel's findings. Torki c. Canada (Ministre de la Citoyenneté et de l›Immigration) (Nov. 29, 2012, F.C., François Lemieux J., File No. IMM-823011) 230 A.C.W.S. (3d) 236. REFUGEE STATUS Not every social group formed by historical facts faced persecution on discriminatory ground Respondents were determined to be refugees. Respondents were passengers on MV Sun Sea. Member found this amount to membership in particular social group for Convention purposes. Member found respondents had had genuine fear of returning to country of origin. Application for judicial review was allowed. It was not every identifiable particular social group formed by irre- Page 17 caselaw vocable historical facts that faced persecution on discriminatory ground. Given existing jurisprudence on question of particular social group resulting from passage on Sun Sea, member's decision did not fall within range of possible, acceptable outcomes which were defensible in respect of facts and law. Canada (Minister of Citizenship and Immigration) v. B171 (Jul. 3, 2013, F.C., Richard G. Mosley J., File No. IMM-11399-12) 230 A.C.W.S. (3d) 240. SELECTION AND ADMISSION Officer assumed applicant obliged to show immediate economic self-sufficiency Applicant was denied permanent residence as member of Federal Skilled Worker class. Applicant wished to find work as university professor. Applicant's brother offered applicant work in restaurant. Officer believed applicant's lack of Ph.D. and limited language skills presented large obstacles despite financial ability and family support in Canada. Officer was of view that support from brother in Canada would have to come in form of skilled position and that it was not sufficient for brother to offer financial and other support. Application for judicial review was allowed. Decision was unreasonable. Officer assumed applicant was obliged to show immediate economic self-sufficiency as university professor or at least skilled worker and failed to consider brother's offer and guarantee of economic support until applicant achieved professional goals. GCMS notes in application formed part of reasons for officer's decision. Decision could not be fully understood without reference to GCMS notes. It was not unreasonable for officer to require usual proof of language efficiency. Immigration and Refugee Protection Act (Can.), and Immigration and Refugee Protection Regulations (Can.), did not specify that individual had to become economically established in occupational category that allowed individual to qualify as skilled worker or that even if applicant could not immediately become university professor that applicant was obliged to show immediate economic self-sufficiency as skilled worker. Rezaeiazar v. Canada (Minister of Citizenship and Immigration) (Jul. 8, 2013, F.C., James W. Russell J., File No. IMM-8253-12) 230 A.C.W.S. (3d) 242. Labour Relations JUDICIAL REVIEW Employer had not contradicted its own regulations This was application for judicial review of decision of public service staffing tribunal. Applicant was eliminated from selection process competition for up to nine new positions within Federal Public Service. He did not make it into staffing pool. Selection panel eliminated applicant from competition on basis that he failed three questions in oral interview. Applicant claimed he failed because he was member of visible minority. Applicant complained to tribunal that there was abuse of authority in application of merit and in choice of process. Complaint was dismissed. Application dismissed. Applicant was given fair hearing. There was no reasonable apprehension of bias on part of examiners or tribunal. Nothing in record supported applicant's speculation that selection panel was biased and selected another out of favouritism or that vice-chair of tribunal was also so infected. Tribunal's decision was reasonable. Tribunal's duty was not to remark exams, but to determine whether applicant had been rejected because of abuse of authority or adverse discrimination due to race or ethnic origin. Tribunal's conclusion that that was not case was upheld. Tribunal made proper assessment in determining that employer had not contradicted its own regulations. Jalal v. Canada (Deputy Minister of Human Resources and Skills Development) (Jun. 6, 2013, F.C., Sean Harrington J., File No. T-2121-11) 230 A.C.W.S. (3d) 266. Police DUTIES Unreasonable to find no contradiction between board's conclusion and expert's opinion Applicant was charged with sexual assault. Criminal charges were stayed. Board concluded allegation was established and that it was proven that sexual assault was facilitated by administration of drug. Board held applicant engaged in disgraceful conduct and that if applicant failed to resign from R.C.M.P. within 14 days applicant would be dismissed. Commissioner dismissed appeal and upheld decision. Application for judicial review was allowed. Commissioner erred in upholding board's finding that complainant and other individual had been drugged as there was no clear and cogent evidence to support finding. It was unreasonable for commissioner to find there was no contradiction between board's conclusion and expert's opinion. Conclusion was made without regard to material before commissioner as it was clear on face of record that board disregarded uncontradicted expert evidence that complainant's symptoms could not be explained by oral ingestion of drug. Commissioner made findings regarding dosage given to complainant that was inconsistent with one of board's findings on issue. It was unreasonable for commissioner to uphold board's finding because individual joked about Spanish Fly with complainant that applicant knew complainant and another were drugged. Board erred in starting with conclusion that complainant was telling www.lawtimesnews.com truth and based on that conclusion that complainant must have been drugged. It was speculative for commissioner to uphold board's finding that applicant knew complainant and other were drugged. MacLeod v. Canada (Attorney General) (Jul. 10, 2013, F.C., Danièle Tremblay-Lamer J., File No. T-1711-12) 230 A.C.W.S. (3d) 290. LIABILITY IN TORT Parole officer's actions did not fall below expected standard of care This was appeal of damages awarded to plaintiff. Plaintiff was imprisoned for manslaughter and was out on day parole. He secured job and was working. It was alleged that person visited home of wife of man who had been incarcerated in same living area within prison as plaintiff. Man remained in prison. It was alleged that wife was asked to smuggle package containing drugs into prison while visiting husband. Wife reported incident to husband who reported it to prison intelligence officer. Officer advised parole officer supervising plaintiff 's parole of incident. Officer spoke to wife who gave him different version of events. Officer consulted with supervisor and revoked plaintiff 's day parole. Plaintiff was returned to prison. He lost job. Matter was reviewed by parole board and plaintiff 's day parole was restored. Plaintiff brought action for damages for misfeasance of office, false imprisonment and negligence of investigation. Prothonotary determined that officers handling case had honest belief that they were acting in best interests of society and there was no misfeasance by officers. However, he found that plaintiff was entitled to damages for false imprisonment and negligence of investigation. Plaintiff was awarded damages of $20,000. Appeal allowed. Standard of review was correctness. Duty of care existed between parole officers and parolee. There was tension in Corrections and Conditional Release Act (Can.), between duty to public and duty to offender but s. 4(a) made it clear that duty to public was paramount. Act and commissioner's directive provided for procedures to be followed in case of revoking parole. Procedures were followed here. Plaintiff had to establish that parole officer's actions fell below expected standard of care. No expert evidence was presented. Parole officers followed required procedure. Review board reversed decision but did not say that officers failed to exercise proper level of care. Plaintiff had not established that parole officer's actions fell below expected standard of care. Both unlawful imprisonment and negligence action failed. Hermiz v. R. (Jul. 9, 2013, F.C., Roger T. Hughes J., File No. T-828-09) Decision at 228 A.C.W.S. (3d) 585 was reversed. 230 A.C.W.S. (3d) 292. ONTARIO CIVIL DECISIONS Appeal LEAVE TO APPEAL Order requiring joint trial did not infringe court's independence This was motion for leave to appeal order made in proceedings under Companies' Creditors Arrangement Act (Can.). Motion judge approved allocation protocol, which provided for joint trial by Superior Court of Justice in Ontario and United States Bankruptcy Court for District of Delaware. Joint trial would determine issue of how to allocate more than US $7 billion in proceeds currently held in escrow. Allocation issue must be resolved before creditors could receive any meaningful distribution from debtors' estates. Leave to appeal refused. Order requiring joint trial did not infringe Ontario court's independence and sovereignty. Relevant agreement between parties did not contain agreement to submit allocation issue to binding arbitration. Agreement was broad enough to establish that allocation issue could be resolved by joint trial before Ontario and Delaware courts. Majority of stakeholders were prepared to proceed with joint trial. Granting leave to appeal would impose additional costs and would further delay proceedings. Nortel Networks Corp., Re (Jun. 20, 2013, Ont. C.A., S.T. Goudge J.A., J.C. MacPherson J.A., and R.G. Juriansz J.A., File No. CA M42415) Leave to appeal from 227 A.C.W.S. (3d) 97 was refused. 230 A.C.W.S. (3d) 125. Conflict of Laws JURISDICTION Father never abandoned intention to have child return to Canada Parties were married in India and lived in Ontario until parties travelled to India for fivemonth holiday in 2012. Parties had one child who was born in Canada. Mother stayed in India with child. Father returned to Canada. Mother commenced guardianship application in India. Father sought return of child from India. Mother brought motion to challenge jurisdiction of court. Mother argued child was habitually resident in India. Court had jurisdiction to deal with custody and access of child. Mother was directed to return child to Ontario within 60 days. Child was to reside with mother until matter was brought back before court. Father was to have liberal access. Father was prepared to pay child support of $396 and spousal support of $800 based on father's income of $43,000. Father did not consent to or acquiesce in mother leaving with child to live with mother's parents in India other than on temporary basis. Expectation was that mother would return with child to Canada after vaca-

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