Law Times

Page 14 May 12, 2014 • Law TiMes www.lawtimesnews.com FEDERAL COURT Administrative Law DUTY TO ACT FAIRLY No procedural fairness obligations in relation to contribution agreements Citizenship and Immigration Canada (CIC) had Language Instruction for Newcomers to Canada (LINC) program that provided funding for language instruction. CIC had provided funding to Canadian Arab Federation (CAF) under LINC program for many years. Min- ister of Citizenship and Immi- gration decided to discontinue funding to CAF under LINC program. Minister's decision was based on CAF having made statements that promoted ha- tred, anti-Semitism, and sup- port for banned terrorist or- ganizations. Minister declined request to meet with CAF. CAF brought application for judicial review. Application dismissed. Minister did not owe duty of procedural fairness to CAF. Na- ture of relationship was strictly commercial. ere was no stat- utory provision that imposed procedural fairness obligations in relation to contribution agreements. ere was no con- tractual provision stipulating service provider organizations would be treated in procedur- ally fair manner. Imposing procedural rights would un- duly burden Minister. Parties' rights were best protected by reviewing court's assessment of reasonableness of decision. In absence of duty of procedural fairness, no consideration had to be given to issue of reason- able apprehension of bias. Canadian Arab Federation v. Canada (Minister of Citizenship and Immigration) (Dec. 23, 2013, F.C., Russel W. Zinn J., File No. T-447-09) 237 A.C.W.S. (3d) 4. JUDICIAL REVIEW Decision to withdraw hon- orary appointment could not be challenged Applicant was awarded Order of Canada based on his contri- bution to entertainment indus- try. Applicant was convicted on two counts of fraud in respect of management of his company and he was sentenced to five years' imprisonment. While ap- plicant was still in custody, he was advised it would be consid- ered whether his appointment to order should be terminated and that applicant could make sub- missions. Applicant was given one-month extension to make submissions. Applicant made extensive representations and stated that he reserved right to add substantially to submissions following his release. Receipt of materials was acknowledged but nothing was said about allowing further submissions. Decision was made to rescind applicant's appointment. Applicant sought judicial review. Respondents asserted Governor General's decision was not amenable to judicial review because his pow- er emanated from Crown Pre- rogative. Application dismissed. Process leading to decision did not fail to meet applicant's le- gitimate expectations about process that would be followed. Decision of Governor General terminating appointment to Order of Canada could be chal- lenged on procedural grounds based on doctrine of legitimate expectations. Decisions based on Crown Prerogative could be judicially reviewed solely where person's rights or legitimate ex- pectations were affected. No Canadian could claim right to honour, so decision to withdraw honorary appointment did not affect person's rights and could not be challenged. Doctrine of legitimate expectations related to procedural fairness and not substantive rights. Sole basis on which Governor General's deci- sion could be reviewed was pro- cedural. Ordinance was open to review on procedural grounds. Drabinsky v. Canada (Attor- ney General) (Jan. 8, 2014, F.C., James W. O'Reilly J., File No. T-363-13) 237 A.C.W.S. (3d) 13. Immigration PERSON IN NEED OF PROTECTION Specialized knowledge had no bear- ing on board's credibility findings Refugee claimant was citizen of Albania who claimed protection based on existence of blood feud between his family and another family. Claimant submitted evi- dence from individual who had been discredited as fraud who provided false blood feud at- testation letters in exchange for money. Board informed claim- ant that letters would be scruti- nized in light of recent Response to Information Request (RIR) and board's specialized knowl- edge. Board identified several omissions, inconsistencies and implausibilities, which led it to conclude that claimant was not credible and did not have subjec- tive fear of persecution. Claim- ant applied for judicial review, contending that board made unreasonable credibility find- ings, and relied upon specialized knowledge during hearing with- out disclosing what specialized knowledge was, in contraven- tion of Rule 22 of Refugee Pro- tection Division Rules (Can.), thereby breaching its duty of procedural fairness. Application dismissed. Specialized knowl- edge of board was only based on RIR. Even if board erred in not clearly indicating its specialized knowledge as required by Rule 22, this was not sufficient ba- sis to set aside decision as there was no reason to conclude that specialized knowledge had any bearing on board's credibility findings, which were clearly identified and reasonable. Toma v. Canada (Minister of Citi- zenship and Immigration) (Feb. 3, 2014, F.C., Catherine M. Kane J., File No. IMM-1799-13) 237 A.C.W.S. (3d) 186. REFUGEE STATUS Board erred in not examining 'oper- ational adequacy' of state protection Refugee claimants were brothers who were citizens of Hungary of Roma ethnicity. Refugee claim- ants experienced discrimina- tion as well as incidents of abuse and violence at hands of racist extremist groups and Hungar- ian police. Refugee claimants came to Canada and unsuccess- fully applied for refugee protec- tion. Immigration and Refugee Board had relied heavily on 2011 version of country condi- tion report when list of exhibits referred to 2010 report. Refugee claimants brought application for judicial review. Application granted; matter remitted for re- determination. Board erred in relying on 2011 report. Informa- tion relating to Roma was not so substantially similar as to make reliance on 2011 report instead of 2010 report immaterial. Spe- cific changes and initiatives had been mentioned in 2011 report that were not mentioned in 2010 report. Refugee claimants had no opportunity to address these changes and initiatives. Reliance on 2011 report could not be said to have had no material impact on board's decision. Board fur- ther erred in not examining "operational adequacy" of state protection. Buri v. Canada (Minister of Citi- zenship and Immigration) (Jan. 15, 2014, F.C., James Russell J., File No. IMM-11092-12) 237 A.C.W.S. (3d) 188. Board applied wrong test with respect to state protection finding Refugee claimants were Roma citizens of Poland, who alleged fear of violence from skinheads and discrimination amounting to persecution. Evidence indi- cated inconsistent response by police to complaints by claim- ants. Board found states only had to make serious efforts at protection and did not have to provide de facto effective or de facto guaranteed protection. Claimants applied for judicial review, contending board ap- plied wrong test for state pro- tection and failed to consider operational adequacy of state protection. Application granted; matter referred to different panel of board for redetermination. Board clearly applied "serious efforts" test and this was central finding in decision. Board ap- plied wrong test with respect to its state protection finding and application was allowed. Dawidowicz v. Canada (Minister of Citizenship and Immigration) (Jan. 31, 2014, F.C., John A. O'Keefe J., File No. IMM-6327- 12) 237 A.C.W.S. (3d) 194. ONTARIO CIVIL DECISIONS Bankruptcy and Insolvency COURTS AND PROCEDURE Court ought not make ruling regarding claim surviving bankrupt- cy in advance of actual bankruptcy Plaintiffs owned property and hired defendant to perform renovations pursuant to two contracts. Plaintiff paid portion of money. Plaintiffs claimed work was never completed and only fraction of work was com- pleted with minimal amount of materials supplied. Work done was substandard and had to be demolished and rebuilt by new contractors. Materials supplied were substandard and were wasted due to poor quality of work. Plaintiffs claimed funds paid to defendants in respect of 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. and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. 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