Law Times

Law Times • June 16, 2014 Page 13 www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Power to remove by rea- son of petition was based on enumerated grounds Election Appeal Committee ("EAC") of respondent First Nation decided to remove ap- plicant from her position as chief pursuant to their election regulations. Problems arose following applicant's election as chief on April 12, 2012. Ap- plicant attempted to control assignment of temporary jobs and there were concerns that she was awarding jobs to sup- porters and family members rather than awarding them on competitive basis. Applicant then sought to appoint new EAC that was more favourable to her positions. EAC advised applicant that such move was contrary to regulations. It ob- tained sufficient signatures on petition from members of First Nation to convene hearing and have applicant removed as chief. Despite applicant's refus- al to recognize EAC's authority to remove her from position of chief and her efforts to occupy Band Office, new chief was ac- claimed following nomination process in which applicant was not nominated as candidate for position. Applicant sought judicial review to overturn ac- tions of EAC. Application dis- missed. EAC's interpretation and application of election regulations must be upheld. Power to remove by reason of petition was based on enumer- ated grounds, determination of validity of ground, and if valid, EAC could remove chief or councillor and by-election process was initiated. Process for determining validity was matter of discretion. EAC did not breach duty of procedural fairness. Applicant chose to ignore petition and opportuni- ties to speak to EAC. Applicant availed herself of such proce- dural rights as she desired. Bighetty v. Barren Lands First Nation (Feb. 21, 2014, F.C., Michael L. Phelan J., File No. T-770-13) 238 A.C.W.S. (3d) 1. Courts ABUSE OF PROCESS Allegations against Federal Court Registry could not form basis for cause of action On Sept. 20, 2012, plaintiff initiated an application for judicial review of Canadian Human Rights Commission's decision not to hear his com- plaint. Plaintiff attempted to file evidence with unsworn affidavits. As Mennonite, he refused to swear his affidavit on Bible that was provided by court's registry in Winnipeg because it was not "undefiled " Bible. Plaintiff was ordered to either obtain access to "unde- filed " Bible and swear on it, or to make solemn affirmation to affirm his affidavit. On April 30, 2013, plaintiff 's action was dismissed for delay. Plaintiff said he did not receive copy of notice of status review. On May 8, 2013, court issued di- rections directing plaintiff to either bring motion to set aside April 30, 2013 order or appeal order to Federal Court of Appeal. Plaintiff did neither and application for judicial re- view was dismissed. On May 16, 2013, plaintiff filed state- ment of claim commencing action against Crown seeking order declaring Federal Court Registry in Winnipeg in con- tempt of court, order directing court to hear his application, and interim order providing means of affirming or swear- ing his affidavit evidence that did not offend his conscience. Defendant filed motion to strike out plaintiff 's statement of claim. Prothonotary struck out plaintiff 's statement of claim without leave to amend. Plaintiff appealed. Appeal dis- missed. Prothonotary did not err by finding that statement of claim did not disclose rea- sonable cause of action. Alle- gations against Federal Court Registry could not form basis for cause of action. Rule 386 of Federal Court Rules (Can.), could not be used to transfer matter to another jurisdiction. Claims were identical to those made in application that was dismissed for delay. Plaintiff 's attempt to re-litigate same is- sues was abuse of process. Klippenstein v. R. (Feb. 25, 2014, F.C., Richard Boivin J., File No. T-874-13) 238 A.C.W.S. (3d) 90. Criminal Law PASSPORT OFFENCES Grounds for refusal did not require proof of inten- tion to defraud or mislead Applicant submitted passport application to Passport Canada for child. Applicant indicated he was in common law rela- tionship with child's mother and answered that there were no court orders or legal pro- ceedings pertaining to custody, mobility or access to child. Both parents appeared to sign application. Child's name had been placed on Passport Cana- da's lookout list. Child's mother was contacted and she stated she was separated from appli- cant and that she never signed passport application. During investigation Passport Canada obtained legal documentation that stated that mother had cus- tody of child and applicant had access. Applicant was arrested for offence under s. 368(1) of Criminal Code (Can.), but was released and was never charged under that section. Applicant was charged with offence of making statement that he knew to be false or misleading for purpose of procuring passport under s. 57(2)(b) of Code. Ad- judicator of Passport Canada revoked applicant's passport and imposed five-year period of refusal of passport services to applicant. Applicant applied for judicial review. Application dismissed. It was not relevant that adjudicator stated that ap- plicant was charged under s. 368(1) of Code because he also relied on ground that appli- cant had not provided Passport Canada with duly completed application. Grounds for re- fusal or revocation did not re- quire proof of intention to de- fraud or mislead. Adjudicator reasonably exercised discretion to impose period of refusal of passport services to applicant for five years. Adjudicator's de- cision was rationally supported by evidence and court's inter- vention with penalty was not warranted. Villamil v. Canada (Attorney General) (Jun. 19, 2013, F.C., Daniele Tremblay-Lamer J., File No. T-563-12) 238 A.C.W.S. (3d) 94. Immigration PERSON IN NEED OF PROTECTION Decision not to seek state protec- tion not convincing evidence that protection was unavailable Claimants were citizens of Al- bania who claimed protection on ground that family was in- volved in blood feud over piece of land in Albania. Claimants lived in United States without status for several years, then came to Canada in 2010, and claimed protection. Board re- ferred and gave significant weight to 2012 report made about Albania for Human Rights Council of United Na- tions, which demonstrated ad- equate protection against blood feuds in Albania and indicated that not only were there laws in Albania to punish blood feud killings, but they were en- forced. Here, claimants had not even attempted to seek protec- tion from their country of na- tionality. Board denied claim and claimants sought judicial review. Application dismissed. Decision not to seek state pro- tection was not clear and con- vincing evidence that state pro- tection was unavailable. Here, board member considered all evidence before him, and found that Albania had laws in force to punish blood feud killings, and that law was be- ing enforced. Board's decision that claimants had not rebutted presumption of state protection was reasonable. Razburgaj v. Canada (Minister of Citizenship and Immigration) (Feb. 17, 2014, F.C., Yvan Roy J., File No. IMM-1214-13) 238 A.C.W.S. (3d) 188. Natural Resources FISHERIES Consensus amongst stakehold- ers not legislative require- ment for recovery strategy Minister did not comply with timeline set out in Species at Risk Act (Can.), for prepara- tion and publication of recov- ery strategies for four species. Ministers admitted they failed to comply with statutory ob- ligations under Act. Delay was caused in part by desire to achieve consensus amongst stakeholders. Applicants sought judicial review seeking declaratory relief and orders for mandamus to compel Min- ister to perform statutory du- ties in relation to four species. Commencement of litigation prompted publication of pro- posed recovery strategies for all four species. There was publica- tion of final recover strategy for 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? 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