Law Times

Page 16 April 14, 2014 • lAw Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Employment PUBLIC SERVICE Inmates participating in work programs not employees Applicant was member of Canadian Prisoners' Labour Confederation (CPLC), which was organization of inmates of federal correctional institu- tions. Objective of CPLC was to compel Correctional Service of Canada to engage in collec- tive bargaining with respect to terms and conditions under which inmates participated in institutional work programs. Officials of Correctional Service of Canada denied applicant and other organizers of CPLC right to sign up members at particular institution. Applicant submit- ted complaint to Public Services Labour Relations Board. Board concluded it had no jurisdiction to entertain complaint because inmates of federal correctional institution who participated in institutional work program were not employees as defined in s. 2(1) of Public Service La- bour Relations Act (Can.), be- cause they were not appointed by Public Services Commission to position created by Treasury Board. Board dismissed com- plaint without considering mer- its. Applicant applied for judicial review of board's decision. Ap- plication dismissed. Board's un- derstanding of facts was open to it on evidence before it. Board's analysis of jurisprudence and relevant statutory provisions was well explained and soundly reasoned. Inmates participating in work programs organized by Correctional Service of Canada had not been appointed to po- sition in federal public service and were not employees within meaning of Act. Jolivet v. Treasury Board (Cor- rectional Service of Canada) (Jan. 7, 2014, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-192-13) 236 A.C.W.S. (3d) 484. FEDERAL COURT Citizenship APPEAL No way to tell from record why DNA requirement imposed, and upon what authority Delegate of Minister of Citi- zenship and Immigration ("of- ficer"), had refused application of foreign national citizen of Philippines ("mother") and her husband, who was Canadian citizen ("father") on behalf of their minor child, for Certificate of Citizenship under s. 12(1) of Citizenship Act (Can.). Citizen- ship and Immigration Canada found that there was insufficient proof that Canadian citizen was child's biological father, and therefore refused application for Citizenship Certificate. Fa- ther and mother were advised that DNA evidence would be required to establish that Cana- dian citizen was child's father. Certificate of Live Birth for child had been provided, however DNA evidence was not provided and application for Citizenship Certificate was denied. Only reason given for DNA demand and refusal to accept birth cer- tificate was that child was born at home with mid-wife and not in hospital. Application al- lowed; decision quashed and matter returned for reconsid- eration by different officer. Rea- son why DNA requirement was needed for child born at home was not articulated. ere was no evidence that reason for this requirement was ever explained to mother and father or that it was publically available in pol- icy manual or elsewhere. ere was no indication that mother and father were advised that s. 3(1)(b) could be satisfied in any other way than through DNA testing. ere was no way to tell from record why DNA re- quirement had been imposed, and upon what authority. With- out this information, decision lacked intelligibility and trans- parency to render it reasonable. Because rationale and legal jus- tification for DNA requirement were never explained to mother and father, they had no oppor- tunity to argue or explain why it should not be applied to them, or opportunity to offer alterna- tive evidence that could suffice to satisfy s. 3(1)(b) of Act. is was procedurally unfair. Watzke v. Canada (Minister of Citizenship and Immigration) (Jan. 8, 2014, F.C., James Rus- sell J., File No. T-229-12) 236 A.C.W.S. (3d) 301. Officer's failure to address purpose of adoption rendered decision unreasonable Citizenship applicants were sis- ters, aged 22 and 24, citizens of Jamaica who had been ad- opted by grandmother who was Canadian citizen. Following adoption citizenship applicants maintained relationship with birth parents and birth father provided some financial sup- port. Officer found that adop- tion had taken place for purpose of providing citizenship ap- plicants with better education, economic gains, family ties and better quality of life in Canada. Officer not satisfied that adop- tion was not entered into pri- marily for purpose of acquiring status or privilege in relation to immigration or citizenship. Ap- plication granted; decision set aside and matter referred back for redetermination by different officer. Relative adoption based on existence of parent-child re- lationship implicates practical family unification issues. ese issues must be addressed in reaching conclusion on purpose of adoption. Practical family unification issue in present case was evidence that grandmother was determined to do very best she could to protect safety and welfare of her grandchildren for whom she had great love. Offi- cer's failure to address purpose of adoptions with this very im- portant consideration in mind rendered decision under review unreasonable. Davis v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2013, F.C., Douglas R. Campbell J., File No. T-764-13) 236 A.C.W.S. (3d) 299. Immigration EXCLUSION AND EXPULSION Fair reading of report left people feeling applicant was ticking time bomb Applicant had been permanent resident since 1991, aer being found refugee from Ethiopia. Applicant was sentenced to six and one-half years' imprison- ment aer being convicted of incest on older daughter and assault on younger daughter and was ordered deported upon release. In danger opinion, del- egate noted crimes were serious, with incest on older daughter for seven years and multiple as- saults including blows to head on younger daughter. Applicant denied incest and assaults and insisted he was disciplining chil- dren. Applicant expressed no remorse and refused treatment. Psychologist opined applicant was low to moderate risk to re- offend and diagnosed pedophil- ia. Delegate concluded applicant was danger to public without treatment, and continued denial and lack of remorse prevented his rehabilitation. Application by judicial review of danger opinion. Application dismissed. Delegate did not ignore fact applicant had not re-offended for twelve years and fact he did not place as much emphasis on this factor as applicant would have liked did not render deci- sion unreasonable. Delegate, not psychologist, had burden of assessing risk and was entitled to deference for decision that was reasonable as a whole. Fair reading of psychologist's report would have le many reasonable people with feeling applicant was a ticking time bomb. Yalemtesfa v. Canada (Minister of Citizenship and Immigration) (Dec. 13, 2013, F.C., Michael L. Phelan J., File No. IMM-1201- 13) 236 A.C.W.S. (3d) 449. REFUGEE STATUS Document presented as authentic cannot be given little probative value Refugee claimant claimed to be Sudanese citizen born in Om- durman in 1970. Claimant sub- mitted birth certificate to board. Board noted that this document contained no photograph of claimant, and no security fea- tures and consisted of handwrit- ten fill-in-the-blank form, and for this reason document had little probative value. As board also found claimant lacked cred- ibility board gave document no weight in terms of establish- ing claimant's identity. Board found that claimant had failed to produce enough evidence to establish his personal identity and dismissed claim. Applica- tion granted. Documents issued by government authority that appear genuine on their face are presumed to be authentic unless there is valid reason to doubt their authenticity. It was unreasonable to conclude that document contained no secu- rity features as it was apparent 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. These cases may be found online in BestCase and other electronic resources from carswell.com. 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