Law Times

Page 16 November 24, 2014 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Constitutional Law CANADIAN BILL OF RIGHTS No self-standing right to fair hearing where no provision in law for adjudicative process Plaintiff 's mother was pho- tographer and journalist. She travelled to Iran and was ar- rested for taking photographs of protesters outside prison. Plaintiff brought action against Iran and individual defendants in personal capacity and as liq- uidator of mother's estate, al- leging that defendants ordered, tolerated or actually caused de- tention, torture and mortal in- juries of his mother while they purported to act in official ca- pacity on behalf of Iran. Plain- tiff claimed to have suffered psychological and emotional trauma. He sought damages for harm inf licted on his mother in Iran and to himself in Canada. Defendants brought motion to dismiss, relying on State Im- munity Act (Can.) (SIA). Mo- tion judge held that SIA barred claim of estate but held that plaintiff 's personal claim could proceed under exception to state immunity. Motion judge found relevant provisions of SIA constitutional. Quebec Court of Appeal dismissed es- tate's appeal and allowed de- fendants' appeal with respect to plaintiff 's claim. Plaintiff 's appeal to Supreme Court of Canada dismissed. Section 2(e) of Bill of Rights, which guar- antees fairness in context of proceedings before Canadian courts or tribunals, does not create self-standing right to fair hearing where no provision in law for adjudicative process. Section 2(e) not engaged unless court or tribunal properly has jurisdiction. Kazemi (Estate) v. Islamic Re- public of Iran (Oct. 10, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35034) Decision at 220 A.C.W.S. (3d) 313 was affirmed. 244 A.C.W.S. (3d) 695. FEDERAL COURT OF APPEAL Social Welfare CANADA PENSION PLAN Applicant not incapable of pursuing substantially gainful occupation Application for judicial review of decision of Social Secu- rity Tribunal, Appeal Division (SST) dated October 15, 2013, dismissing applicant's appeal and confirming that she no longer qualified for disability benefits under Canada Pension Plan (CPP). Applicant had ini- tially been granted CPP dis- ability benefits in 1993 because of difficulties in using her arms and legs. She was reassessed five times between 1993 and 2009. In 2009, she began her current employment as Re- storative Justice Coordinator with RCMP detachment. She received number of accom- modations from her current employer. In December 2010, Human Resources and Skills Development Canada reas- sessed applicant and found that she no longer qualified for dis- ability benefits on account of her current employment. SST dismissed applicant's appeal from decision, finding that ap- plicant was not currently dis- abled within meaning of CPP and had not been since 2011. Applicant now sought judicial review. Application dismissed. Purpose of CPP was to assist Canadians who experienced loss of earnings as result of re- tirement, disability or the death of wage earning family member by providing them with social insurance. As well as providing evidence of disability, individu- als must establish they were in- capable regularly of pursuing any substantially gainful oc- cupation. SST did not commit any reviewable errors in find- ing that applicant no longer qualified for disability benefits. She attended work 70% of time and, while she needed some assistance from her husband and co-workers, was capable of performing essential tasks of her job without assistance. Work expected from her was not considerably less than work expected from other employ- ees. It was therefore open to SST to find that applicant was not incapable of regularly pur- suing any substantially gainful occupation. Atkinson v. Canada (Attorney General) (Jul. 30, 2014, F.C.A., Eleanor R. Dawson J.A., Jo- hanne Gauthier J.A., and Jo- hanne Trudel J.A., File No. A-374-13) 244 A.C.W.S. (3d) 727. FEDERAL COURT Immigration REFUGEE STATUS Obtaining citizenship in country where he was born not within applicant's control Immigration and Refuge Board (Board) denied applicant's claim for refugee status on basis he could live safely in country where he was born. Board con- cluded applicant could obtain citizenship in country where he was born. Applicant sought judicial review. Application granted. Conclusion that ob- taining citizenship in country where applicant was born was within applicant's control was unreasonable. Board should have considered applicant's claim against China and not country where he was born. Ev- idence showed applicant could have difficulty persuading of- ficials in country where he was born that he was eligible for citizenship. Obtaining citizen- ship in country where he was born was not within applicant's control, but depended on how other exercised discretion. Wanchuk v. Canada (Minister of Citizenship and Immigration) (Sep. 16, 2014, F.C., James W. O'Reilly J., File No. IMM-3511- 13) 244 A.C.W.S. (3d) 663. Claimant had not been afforded benefit of presumption of truthfulness Refugee claimants were young couple from Hungary. Male refugee claimant was of Hun- garian ethnicity while female refugee claimant was of Roma ethnicity. Refugee claimants al- leged they had been subjected to violence, intimidation, and threats due to their "inter- ethnic" relationship. Refugee claimants came to Canada and unsuccessfully applied for refu- gee protection. Immigration and Refugee Board had told male that particular date dis- crepancy was not problem but then relied on discrepancy in finding male not credible. Refu- gee claimants brought applica- tion for judicial review. Appli- cation granted; matter remitted for re-determination. Male had not been afforded benefit of presumption of truthfulness. Board had also made assump- tions and speculated about other incidents without evi- dentiary base. Moreover, there was no general negative cred- ibility finding so it was uncer- tain as to how much of refugee claimants' testimony had been accepted. In addition, board's examination of documentary evidence regarding adequacy of state protection was inadequate and unreasonable. Board also relied too heavily on fact that Hungary was nominal "democ- racy" instead of looking at par- ticular situation in Hungary. Board also committed review- able error when it treated situ- ation as being one of "domestic violence" just because male's mother had been instigator. Tar v. Canada (Minister of Citi- zenship and Immigration) (Jul. 31, 2014, F.C., James Russell J., File No. IMM-2053-13) 244 A.C.W.S. (3d) 667. Question as to justification, transparency and intelligibility within decision-making process Refugee claimant alleged that he was 38-year-old citizen of Democratic Republic of Congo (DRC). Review of fingerprints revealed that they were finger- prints of 43 year old Angolan man. Claimant indicated that he obtained fraudulent Ango- lan passport as soon as he be- gan to fear for his safety in DRC and that fingerprinting was also necessary in obtaining his biometric passport from DRC. Angolan identity was only sup- ported by Facebook page and passport that claimant claimed to have obtained fraudulently and which was not even submit- ted into evidence before RPD. RPD concluded since claimant was citizen of Angola and did not allege any fear of return- ing to that country, his claim was rejected. Claimant applied for judicial review. Application granted; matter referred back to differently constituted panel of RPD for reconsideration. In light of weakness of finding on 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. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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