Law Times

Page 14 May 5, 2014 • Law TiMes www.lawtimesnews.com FEDERAL COURT Citizenship APPEAL Serious irregularity had allowed applicant to obtain adoption order in Ukraine Applicant was citizen of Canada and Ukraine. Applicant worked as medical doctor and had home in Saskatchewan, and she also maintained home in Ukraine. Applicant was granted approval to adopt children from Ukraine through international adoption. However, applicant adopted two children in Ukraine through domestic private adoption ap- proved by Ukrainian Court. Of- ficer refused to grant citizenship to applicant's adopted children under s. 5.1(1) of Citizenship Act (Can.). Officer was not satis- fied that adoption was in accor- dance with Ukraine legislation. Officer was not satisfied that applicant disclosed full infor- mation respecting place of per- manent residence and marital status to Ukrainian judge who made decision on adoption. Applicant applied for judicial review of officer's decision. Ap- plication dismissed. Officer was obligated to find out and con- sider whether adoptions were in accordance with laws of place where they took place and laws of country of residence of adopt- ing citizen. Officer discovered that applicant had not effected international adoption, but had secured domestic adoption in Ukraine. Officer was obligated to determine how Canadian citizen, who was resident in Sas- katchewan at time of citizenship applications, was able to obtain domestic adoptions in Ukraine. Officer concluded that applicant secured domestic adoptions be- cause she presented herself as Ukraine resident. Applicant did not reveal she was also resident of Canada and was married to non-Ukrainian resident of Canada who lived in Saskatch- ewan where applicant had medi- cal practice. Officer had good reason to conclude that serious irregularity had allowed appli- cant to obtain adoption order in Ukraine. Adoption order would not have been obtained if appli- cant revealed she was Canadian citizen who had been living in Canada for number of years. Ukrainian court was not pro- vided with fundamental infor- mation that was relevant to its jurisdiction to grant order. Offi- cer was not biased, did not deny applicant procedural fairness and did not err in assessment of evidence. ere were sufficient grounds for officer to disregard Ukrainian court order. Cheshenchuk v. Canada (Minister of Citizenship and Immigration) (Jan. 13, 2014, F.C., James Rus- sell J., File No. T-2217-12) 236 A.C.W.S. (3d) 825. Immigration JUDICIAL REVIEW Applicant entitled to know what indictable offence was being cited against him Applicant was citizen of Canada and Brazil. Wife was citizen of Brazil and claimed New Zealand citizenship. Wife paid paralegal to obtain her New Zealand citi- zenship and passport. Applicant and wife travelled and wife was denied boarding because New Zealand passport was found to be counterfeit. Applicant's passport was seized on return to Canada. Applicant denied he knew wife's passport was coun- terfeit. Applicant was denied passport services for five years. Director found applicant was in- volved in misuse of his passport by attempting to assist improp- erly documented person to trav- el. ere was no evidence appli- cant was charged or convicted of committing indictable offence in Canada or any offence in foreign country. Applicant sought judi- cial review. Application granted. ere was no finding of indict- able offence. Director had no ju- risdiction to make such finding because it was matter of criminal law to be determined by judge not government official. Direc- tor did not identify provisions of Immigration and Refugee Pro- tection Act (Can.), that was to form basis of indictable offence. Applicant was entitled to know what indictable offence was be- ing cited against him and failure to do so was breach of natural justice and procedural fairness. In interpreting s. 10(2)(b) of Ca- nadian Passport Order, power to revoke was dependent on com- mission of indictable offence in Canada or offence of similar type in another country. Words "in committing an indictable of- fence" meant that pre-condition to revocation or service denial was commission of indictable offence by subject person. With- out identifying which offence was claimed to be in issue, it was not possible for director to show reasons to be reasonable. Dias v. Canada (Attorney Gener- al) (Jan. 21, 2014, F.C., Michael L. Phelan J., File No. T-1344-12) 236 A.C.W.S. (3d) 989. SELECTION AND ADMISSION Officer's refusal to accept statutory declaration was unreasonable Foreign national was citizen of Philippines who came to Canada as member of Live-In Caregiver Class, and subsequently applied for permanent residence. Prior to coming to Canada foreign national had been married and had child, which she listed as non-accompanying overseas de- pendent. Child required medical examination to ensure she was not inadmissible, however child was in custody of former spouse who refused to co-operate with medical examination require- ment. CIC Manual IP 4 stated that exception existed to require- ment for medical examination of children of applicants who were in legal custody of someone else where documentary proof of custody arrangements was pro- vided. Foreign national provided statutory declaration that daugh- ter was in sole custody of former husband, and was not being made available for medical exam- ination, that foreign national was releasing any right to custody of daughter or to sponsor daughter as member of family class in fu- ture. Officer did not acknowledge existence of statutory declaration and refused application. Foreign national applied for judicial re- view. Application granted. Ac- cording to Manual IP 4, statutory declaration was acceptable docu- mentary proof of fact that foreign national's daughter was in legal custody of another individual. While officer was not compelled to accept statutory declaration as de facto evidence that foreign na- tional's daughter was in sole cus- tody of her ex-husband, in view of guidance offered by Manual IP 4, officer would need to provide reasonable basis upon which to refuse to accept that evidence. Officer's refusal without explana- tion to accept statutory declara- tion as evidence as to custody of foreign national's daughter was unreasonable. Rarama v. Canada (Minister of Citizenship and Immigration) (Jan. 17, 2014, F.C., Cecily Y. Strickland J., File No. IMM- 2255-13) 236 A.C.W.S. (3d) 997. ONTARIO CIVIL DECISIONS Appeal LEAVE TO APPEAL Not clear from judge's reasoning whether he considered creating subclass Plaintiffs were charitable or re- ligious organizations who were seeking restitution of lottery li- censing and administration fees paid by them to the municipali- ties aer January 1, 1990, alleg- ing that fees were illegal and un- constitutional taxes. Plaintiffs sought order certifying actions as class proceedings. Judge cer- tified only claims he found were not prima facie time-barred. Di- visional Court allowed plaintiffs' appeal finding that judge erred in law when he refused to certify portion of claims that were pri- ma facie time-barred. Division- al Court referred matter back to judge for reconsideration. Judge certified all claims going back to January 1, 1990, includ- ing prima facie time-barred claims. Municipalities sought leave to appeal judge's decision. Leave to appeal granted. When matter was referred to judge to reconsider certification in ac- cordance with s. 5(1)(b), (d) and (e) of Class Proceedings Act, 1992 (Ont.), he was required to conduct analysis set out in case law. In order to determine whether class proceeding was preferable procedure judge was required to consider whether, given all circumstances of par- ticular claim, it would be prefer- able to other methods of resolv- ing claim and that it would be preferable to use of individual proceedings. Analysis required judge to compare advantages and disadvantages of proceed- ing with all plaintiffs by way of class proceeding and consider advantages and disadvantages with respect to goals of class proceedings. Judge did not con- duct proper analysis. Judge did not provide analysis of whether prima facie time-barred claims actually formed subclass that were specifically contemplated in s. 5(2) of Act. It was not clear from judge's reasoning whether he considered appropriateness of creating subclass. ere were reasons to doubt correctness 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. To subscribe, please call 1-800-387-5164. 2014-15 ATLANTIC LEGAL TELEPHONE DIRECTORY 2014-15 Atlantic Legal Telephone Directory connects you to your legal community providing accurate and essential legal contact information in all four Canadian Atlantic Provinces. STAY CONNECTED TO YOUR LEGAL NETWORK 1FSGFDUCPVOEȕ+VOF ȕ- Multiple copy discounts available Plus applicable taxes and shipping & handling (Prices subject to change without notice) Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation AtlanticDir_LT_May5_14.indd 1 14-04-28 10:30 AM

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