Law Times

Law Times • OctOber 6, 2014 Page 19 www.lawtimesnews.com Abdou v. Canada (Minister of Citizenship and Immigration) (May. 26, 2014, F.C., Michael D. Manson J., File No. T-1638-13) 240 A.C.W.S. (3d) 814. Courts JURISDICTION Unclear what legal basis appli- cant relied upon in bring- ing application to court Applicant purchased 114 prop- erties between 2004 and 2013 as part of long standing effort to construct second span of Ambassador Bridge over De- troit River. In September 2013, respondent city issued repair orders in relation to 114 vacant properties as they had become blight on community. Applicant appealed those orders to Proper- ty Standards Committee. In Oc- tober 2013, applicant filed appli- cation to Federal Court seeking declaration that, among other things, Ambassador Bridge was considered "federal undertak- ing", and as such, was not sub- ject to municipal by-laws. City brought motion to strike out notice of application on grounds that Federal Court did not have jurisdiction to hear application. Motion granted. It was plain and obvious that application lacked reasonable cause of ac- tion, and that it was bereft of any possibility of success. Applicant did not appear to be challenging any particular decision of city, Property Standards Committee, or any order of federal board, commission or other tribunal. Rather, it appeared to be simply seeking legal opinion regarding applicability of Act to Incorpo- rate the Canadian Transit Com- pany from court. Court did not have statutory authority to grant such remedy. It was equally un- clear what legal basis applicant had relied upon in bringing ap- plication to court. Canadian Transit Co. v. Windsor (City) (May. 21, 2014, F.C., Michel M.J. Shore J., File No. T-1699-13) 240 A.C.W.S. (3d) 875. Immigration EXCLUSION AND EXPULSION Country of removal not stable and secure place to live Applicant, aged 24, was born to Sudanese parents in refugee camp in Ethiopia, moved to refu- gee camp in Kenya around age 3, and lived there until around age 10 when he moved to Canada with his parents and five siblings. Applicant was third child in family. Applicant pleaded guilty to number of criminal charges, including carrying concealed weapon, mischief and obstruc- tion. As result, applicant was rendered inadmissible to Canada pursuant to s. 36(1)(a) of Immi- gration and Refugee Protection Act (Can.). Immigration Appeal Division of Immigration and Refugee Board of Canada (IAD) declined to grant stay of deporta- tion order, having considered hu- manitarian and compassionate grounds. Applicant sought judi- cial review of decision. Applica- tion granted. All parties involved in hearing accepted that Sudan was likely country of removal. There was evidence that appli- cant had no connection to likely country of removal. However, in addition to that hardship fac- tor, there was evidence, as scant as it may have been, that likely country of removal also posed hardship as it was not stable and secure place to live. For those reasons, decision of IAD was set aside and matter remitted for redetermination, after new hear- ing, to differently constituted panel. Bulgak v. Canada (Minister of Public Safety and Emergency Pre- paredness) (May. 14, 2014, F.C., Russel W. Zinn J., File No. IMM- 2177-13) 240 A.C.W.S. (3d) 941. REFUGEE STATUS Vilification in extremist media pre- sented personalized risk to claimants Refugee claimants, mother, fa- ther, and four minor children, were citizens of Hungary of Roma ethnicity who came to Canada in 2011, and claimed refugee protection based on fear of persecution by reason of their ethnicity. In 2012, child of claim- ants was killed in motor vehicle accident and Toronto media publicized accident as dilemma arose for family as to where to bury child, given uncertainty of refugee claim. Toronto news- paper article was picked up by Hungarian media and widely disseminated by all major Hun- garian news outlets, both print and electronic. Kuruc.info, ex- treme racist group in Hungary, produced online news portal that published content against Hungarian Roma community and published claimants' story, including family's names, on its website. As result of its publish- ing information relating to situ- ation of claimants, threatening comments were posted online accompanied by insignias of other extremist groups. This was only occasion where specific per- son or family seeking asylum in Canada had been identified on this website. Board determined that claimants had not provided clear and convincing evidence that state protection was not available in Hungary since their evidence indicated that they had made little to no effort to seek state protection. Board did not discuss sur place claim. Board dismissed claim and claimants applied for judicial review. Appli- cation granted. Failure of board to address sur place claim arising from child's death in Canada and response to it by extremists in Hungary, in particular circum- stances of this matter, required that decision be overturned and claim returned to Immigration and Refugee Board for recon- sideration. Public identification of claimants and vilification in Hungarian extremist media presented personalized risk to claimants distinct from type of generalized discrimination and street violence that they had pre- viously experienced. Here they faced direct threats from mem- bers of broad network of racist extremists linked to authoritar- ian political parties. Question of whether protection of state would be adequate in those cir- cumstances had to be squarely addressed by the board. Board was required to consider this evidence to determine whether presumption of state protection remained valid, and its failure to do so rendered decision unrea- sonable. Balog v. Canada (Minister of Cit- izenship and Immigration) (May. 9, 2014, F.C., Richard G. Mosley J., File No. IMM-1806-13) 240 A.C.W.S. (3d) 954. SELECTION AND ADMISSION When assessing harm to child, expert opinion may be of particular significance Father and mother foreign na- tionals had f led persecution in Pakistan and travelled to United States, where two children, aged 15 and 14, were born. Foreign nationals moved to Canada, made unsuccessful refugee claim and filed humanitarian and compassionate (H&C) ap- plication. Foreign nationals submitted psychological re- port describing difficulties that children would face if returned to Pakistan as children would need to learn new language and way of life and some aspects of culture had potential to be ex- tremely difficult and likely trau- matizing for children, as they did not speak, read, or write lan- guage or any other language re- quired to function capably if re- moved to Pakistan. Officer con- cluded that children would not experience hardship that in and of itself warranted exemption if returned to Pakistan. Foreign nationals applied for judicial review. Application granted. Officer's analysis was deficient as officer was not alert, alive and sensitive to best interests of children, specifically, hardship that they would face if they had to relocate to Pakistan. Officer's analysis of concerns regarding disruption to boys' education and their anxiety was directed only to state of education sys- tem in Pakistan and availability of medical treatment. Officer failed to address specific hard- ships that boys would face if they were removed to Pakistan. Officer never addressed ques- tion of impact on these boys of interrupting their education by having to learn foreign language and harm that would inevitably occur if that happened. Pakistan was clearly not home country of either boy, as neither had ever been there, even for one day. Psychological report was not in nature of advocacy although prepared for immigration pur- poses as it ref lected information obtained directly from children and psychological tests em- ployed, and it expressed, with- out exaggeration, professional opinion of psychologist. When assessing harm to child in con- text of H&C application, expert opinion may be of particular significance. Ali v. Canada (Minister of Citi- zenship and Immigration) (May. 15, 2014, F.C., Russel W. Zinn J., File No. IMM-3048-13) 240 A.C.W.S. (3d) 958. SUPREME COURT OF CANADA Industrial and Intellectual Property COPYRIGHT Establishing minimum fee for use of existing works does not affect rights conferred on copyright holders Relations between artists and certain federal government in- stitutions that engage artists to provide artistic production gov- erned by Status of the Artist Act (Can.) (SAA), which provides for certification of associations to represent artists and negoti- ate with institutions to conclude scale agreements setting out minimum terms and conditions for provision of artists' services. Negotiations for scale agreement between CARFAC and RAAV, certified associations for Cana- dian visual artists, and National Gallery of Canada (NGC) broke down after NGC, relying on le- gal opinion, refused to agree to minimum fees for licensing or assignment of copyright in ex- isting artistic works. CARFAC and RAAV complained to Ca- nadian Artists and Producers Professional Relations Tribu- nal that NGC failed to bargain in good faith. Tribunal held that licensing or assignment of copyright in existing works can be subject to binding mini- mum fees and NGC failed to bargain in good faith by adopt- ing uncompromising position. Majority in Federal Court of Appeal allowed NGC's applica- tion for judicial review, finding that allowing scale agreements to impose minimum fees for existing works would conf lict with Copyright Act (Can.) (CA). Appeal allowed. Reasonable for tribunal to conclude that scale agreement includes provision of existing artistic works. Nothing in SAA supported treating com- missioned and existing works differently. Authors bound by SAA include authors of artistic works within meaning of CA, i.e. artist already produced ar- tistic work. To exclude existing works from scale agreements would result in SAA having limited impact; NGC acknowl- edged it rarely commissions works. Collective bargaining by artists' associations under SAA in respect of scale agreements covering existing artistic works not contradicting any provi- sion of CA. Artists' associations are simply bargaining agents and have not taken for granted any property interest in any artist's copyright. Establishing minimum fee for use of exist- ing works does not affect rights conferred on copyright holders nor does it cause any conf lict with provisions regarding col- lective societies since mini- mum fees for existing works do not apply to collective societ- ies. When dealing with federal governmental producers for use of existing works, artists may assign or license copyright to collective society, in which case CA tariffs apply, or may deal di- rectly with producer, in which case applicable SAA agreements apply. Tribunal's finding that NGC failed to bargain in good faith not unreasonable. Canadian Artists' Representa- tion / Le Front des artistes ca- nadiens v. National Gallery of Canada (Jun. 12, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Wagner J., File No. 35353) Decision at 226 A.C.W.S. (3d) 557 was reversed. 240 A.C.W.S. (3d) 963. LT CASELAW A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY CANADIANLAWYERMAG.COM/LEGALFEEDS

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