Law Times

Page 14 SePtember 1, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Employment Insurance DECISIONS OF UMPIRE Complete, whole day did not necessarily mean calendar day Claimant became entitled to employment insurance ben- efits effective July 3, 2011. For short period of time claimant was outside Canada and un- available for work. Claimant le Canada on morning of first day and returned during evening of second day. Pursuant to s. 37(b) of Employment Insurance Act (Can.), claimant was not entitled to receive employment benefits for any period she was not in Canada. Umpire found that first day did not count in calculation of period claimant was outside Canada, but second day did. At- torney General applied for judi- cial review of umpire's decision. Application dismissed. Interpre- tation that would disentitle per- son from benefits for fractions of days would not further adminis- trative efficiency. Express words, design and architecture of Act supported view that "period" in s. 37(b) was to be expressed only in whole days, not fractions of days. Person who was outside Canada for fraction of com- plete day was not counted as "period" outside of Canada un- der s. 37(b). Claimant was away for total of one day, but on each calendar day she was away for only fraction of day. Absence on each calendar day should not be disregarded. "Period" in s. 37(b) was period, expressed in com- plete, whole days, during which claimant was outside of Canada. Complete, whole day did not necessarily mean calendar day and it could include continuous 24-hour period that straddled two calendar days. Claimant was outside of Canada for one complete whole day and she was not entitled to receive one day of benefits. Canada (Attorney General) v. Picard (Feb. 17, 2014, F.C.A., K. Sharlow J.A., David Stratas J.A., and D.G. Near J.A., File No. A-3- 13) 239 A.C.W.S. (3d) 659. FEDERAL COURT Immigration EXCLUSION AND EXPULSION Officer almost certainly wrong when he described situation as unchanged Applicant's underlying judicial review application sought de- ferral of removal in face of new risks facing homosexuals and bisexuals in Nigeria. Applicant claimed he was bisexual and feared his sexual orientation would put him at serious risk of death, extreme sanction and inhumane treatment in Nige- ria. Motion by applicant for stay of removal pending outcome of judicial review application. Motion granted. Officer was given country condition reports, which demonstrated situation in Nigeria had worsened. In appli- cant's refugee application, board did not accept applicant had personalized risk, but did not make any finding on his sexual orientation or generalized risk. As such, officer had no basis to conclude risk considered by board was same generalized risk presented in support of deferral request. While officer did not have authority to look behind board decision, he had duty to consider generalized risk faced by applicant as purported bi- sexual returning to Nigeria. Ni- gerian government had begun campaign against homosexuals and bisexuals, with round ups and inhumane punishment, which had been condemned by Canada and other countries. Of- ficer was almost certainly wrong when he described situation in Nigeria as unchanged and found that board had appropriately assessed generalized risk. Ir- reparable harm was established and Canada clearly should not be deporting homosexuals and bisexuals to Nigeria in current conditions. Balance of conve- nience favoured applicant's in- terest over Minister's desire to deport him. Abioye v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Apr. 10, 2014, F.C., R.L. Barnes J., File No. IMM- 1828-14) 239 A.C.W.S. (3d) 718. INADMISSIBLE AND REMOVABLE CLASSES No true and clear picture of existing and future humanitarian and compassionate concerns Family member not declared as dependent upon arrival of sponsor in Canada. Foreign na- tional, who was citizen of China born in May 1994 and living in China, was sponsored to Can- ada in November 2011 by her mother, citizen of Canada who came to Canada in 2005 with her husband and older daugh- ter. Sponsorship application was refused because foreign national was not declared as dependent by her mother upon arrival in Canada. During interview offi- cer questioned foreign national about past and impact of being le behind in China by mother, rather than about present and future best interests. Officer re- fused permanent residence ap- plication aer making finding of inadmissibility. Foreign national applied for judicial review. Ap- plication granted. Although foreign national was not child at time decision under review was made, officer's conclusion was required to display funda- mental understanding of pres- ent and future impact on foreign national of being separated from her mother, both practically and emotionally. Officer did inves- tigate practicalities in interview of foreign national, but did not ask questions that would illicit answers that would provide true and clear picture of existing and future humanitarian and com- passionate concerns. Because this line of investigation was re- quired to be engaged, and since it was not engaged, officer's deci- sion was unreasonable. Liao v. Canada (Minister of Citi- zenship and Immigration) (Apr. 8, 2014, F.C., Douglas R. Camp- bell J., File No. IMM-12150-12) 239 A.C.W.S. (3d) 737. REFUGEE STATUS More systematic attempt at explaining identification discrepancies should be made Refugee claimants travelled to Canada using false documents. Claim was allowed, and then ini- tial decision was vacated by pan- el. Refugee Protection Division found that identities of claim- ants were supported by several documents, including passport from Madam, national identity cards, marriage certificate and family registration certificate. Claimants also presented docu- ments which confirmed both professional background of wife and documents confirming le- gal difficulties in Pakistan. In its decision vacating claim RPD never referred to that evidence nor affidavit in which claimants disclosed that they had travelled on false documents. Claimants applied for judicial review. Ap- plication granted; matter sent back for redetermination by dif- ferent panel of Refugee Protec- tion Division of Immigration and Refugee Board. Although Refugee Protection Division had identified there was lack of clarity with respect to identity of claimants, decision lacked fea- tures of intelligibility and jus- tification required in decision- making process to conclude that it was reasonable. More system- atic attempt at explaining identi- fication discrepancies should be made by Minister and claimants should provide clear explana- tion of circumstances surround- ing their arrival in Canada. Imtiaz v. Canada (Minister of Citizenship and Immigration) (Apr. 16, 2014, F.C., Yvan Roy J., File No. IMM-10936-12) 239 A.C.W.S. (3d) 730. ONTARIO CIVIL DECISIONS Civil Procedure DEFAULT To move from finding arguable defence to final determina- tion was not just result For years plaintiff provided crop services to defendant. When defendant did not fully pay for services, plaintiff had him sign invoice to acknowledge out- standing amount of $49,862.82. Pre-printed words at bottom of invoice stated that interest would be charged on overdue accounts at annual rate of 24%. Plaintiff sued defendant for un- paid amount plus interest and obtained default judgment. Six years later defendant brought motion to have default judg- ment set aside. Motion judge concluded that defendant had arguable defence on merits of applicable interest rate. Motion judge varied default judgment by substituting annual interest rate of 5%. Plaintiff appealed. Ap- peal allowed. Motion judge con- sidered relevant factors. ere was evidence before motion judge that called into question whether defendant had agreed to pay interest at rate of 24% per annum. Having found that there was arguable defence, it was open to motion judge to find that interests of justice favoured 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. 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