Law Times

Law Times • November 24, 2014 Page 17 www.lawtimesnews.com Angolan passport, not only did RPD not question claimant's Angolan citizenship, but it also presumed it to be valid. Deci- sion to reject Congolese identity was undoubtedly inf luenced by presumed genuineness of An- golan identity. While rejecting claimant's Congolese identity would not have been unreason- able in itself, it was unreason- able to base such rejection, even partly, on existence of another identity that was not verified and that was weakly supported. Indeed, by adopting such rea- soning, RPD fell into inconsis- tency: on one hand, it rejected claim on ground that claim- ant was unable to establish his identity, and on other hand, it confirmed other identity with- out any verification. This was not reasonable given f lagrant lack of analysis in that respect and was sufficient to ques- tion existence of justification, transparency, and intelligibility within decision-making pro- cess independently of rest of decision. Kanyinda c. Canada (Min- istre de la citoyennete et de l' immigration) (May. 6, 2014, F.C., Simon Noel J., File No. IMM-4359-13) 244 A.C.W.S. (3d) 665. Board committed reviewable error by being selective in review of evidence Refugee claimants were hus- band, wife, and child who were citizens of Hungary of Roma ethnicity. Wife had been ha- rassed throughout her school- ing and was pressured to drop out. Neighbour of wife threat- ened her with gun and was convicted of mischief. Hus- band and friends had been at- tacked on one occasion but at- tackers were acquitted. Many years later, husband and wife received death threats while living together. Husband was subsequently beaten by three Hungarian Guards. Refugee claimants came to Canada and unsuccessfully applied for refu- gee protection. Immigration and Refugee Board concluded refugee claimants had not re- butted presumption of adequa- cy of state protection. Refugee claimants brought application for judicial review. Applica- tion granted; matter remitted for re-determination. Stan- dard of review was agreed to be reasonableness, and decision was unreasonable. Board had selectively relied on evidence indicating adequacy of state protection from documents that made it clear that state pro- tection was not operationally adequate for Roma people in Hungary. By being selective in this manner, board committed reviewable error. When read in its entirety, much evidence re- lied upon by board supported refugee claimants' contention that adequate state protection for Roma people did not exist in Hungary. Balogh v. Canada (Minister of Citizenship and Immigration) (Aug. 1, 2014, F.C., James Rus- sell J., File No. IMM-2814-13) 244 A.C.W.S. (3d) 666. Objective fear analysis tainted by applying incorrect tests Refugee claimants were citizens of South Africa who alleged fear of persecution because they were white. Claimants spent approximately seven hours in airport in United Kingdom while waiting for f light to Can- ada, where they had already ob- tained temporary resident visa and booked hotel room. Board found that as claimants had f lown through United King- dom without claiming asylum there they had no subjective fear and were simply trying to use refugee protection system as means to settle in Canada. Claimants alleged that they decided to claim protection in Canada because they had heard about another white South Af- rican whose claim had been successful here and had already contacted lawyer who had rep- resented him. Board rejected claim and claimants applied for judicial review. Applica- tion granted; matter referred to another panel of board for redetermination. While it is true that delay in claiming protection can indicate lack of subjective fear, it is highly fact- specific determination. Here, board seized upon brief layover in England as reason enough to conclude that claimants must have lacked any subjective fear. Board tied its finding of lack of subjective fear directly to fail- ure to claim asylum in United Kingdom. That was unjustifi- able inference and unreason- able one. Because objective fear analysis was also tainted by ap- plying incorrect tests, decision as whole was unreasonable. Nel v. Canada (Minister of Citi- zenship and Immigration) (Sep. 4, 2014, F.C., John A. O'Keefe J., File No. IMM-4601-13) 244 A.C.W.S. (3d) 669. SELECTION AND ADMISSION Factors that favour keeping family together do not always outweigh upholding integrity of system Best interests of child. Foreign national, who had been born in United States, came to Canada in 2009 when he was six years old. Foreign national's parents and siblings were granted per- manent residence in Canada however foreign national was not included in application made for rest of family. Foreign national's mother tried to spon- sor him as member of family class in October 2010, howev- er sponsorship was rejected. Mother subsequently sought to obtain permanent residence for foreign national by seeking exemption from s. 117(9)(d) of Immigration and Refugee Protection Regulations (Can.), relying on humanitarian and compassionate (H&C) consid- erations in s. 25(1) of Immigra- tion and Refugee Protection Act (Can.). Mother contended that it was in child's best inter- ests to remain in Canada and live here with other members of family, who all have permanent resident status and that sepa- ration would be very harmful. Officer rejected application, concluding that under s. 117(9) of Regulations, foreign nation- al was not member of family class, having not been declared at outset, and that in this case, H&C considerations and best interests of child did not war- rant exemption from s. 117(9) of Regulations. Foreign national and mother applied for judicial review. Application dismissed. Factors that favour keeping family together do not always outweigh upholding integrity of immigration system. If inter- ests of child automatically pre- vailed, this would become auto- matic exemption from s. 117(9) (d) of Regulations, rendering that provision ineffective for specific class of individuals. Immigration officer exercised her discretion, on behalf of Minister, by giving full consid- eration to best interests of child, concluding that he would not face unusual and undeserved or disproportionate hardship if he returned to country of citizenship and to provisions of Act which are clearly in public interest and would have to be set aside to grant application. Decision under review was rea- sonable in every respect and must be treated with deference. Rezki c. Canada (Ministre de la Citoyennete et de l'Immigration) (May. 23, 2014, F.C., Yvan Roy J., File No. IMM-5154-13) 244 A.C.W.S. (3d) 671. VISITORS Reasoning behind decision was at best, obscure Foreign national was citizen of Cambodia who had worked as cook in Cambodia and re- ceived employment offer from restaurant in Quebec. Foreign national applied for temporary work permit to work in Quebec restaurant. Officer determined that foreign national had not established that he had pro- fessional experience required to perform prospective job at Quebec restaurant and that deficiencies in his evidence un- dermined his credibility. Offi- cer denied application. Foreign national applied for judicial review. Application granted; matter referred back to another immigration officer for rede- termination. Visa officer's de- cision was unreasonable. To be adequate, reasons must allow reviewing court to understand why decision-maker made de- cision and then to determine whether decision-maker's find- ing falls within range of accept- able outcomes. Decision was essentially summary of facts. Reasoning behind decision was at best, obscure. Officer's notes do not explain why de- cision was made. Although it was clear from her reasons that officer had concerns on some aspects of evidence in record, they do not explain how these concerns formed part of her fi- nal conclusion. It was not clear whether decision was nega- tive credibility finding or was based on lack of evidence that foreign national could meet re- quirements for potential job in Canada. Since reasons had no justification or intelligibility, it remained impossible for court to determine whether decision fell within range of possible, ac- ceptable outcomes defensible in respect of facts and law. Run c. Canada (Ministre de la Citoyennete et de l'Immigration) (May. 14, 2014, F.C., Michel M.J. Shore J., File No. IMM- 3846-13) 244 A.C.W.S. (3d) 674. ONTARIO CIVIL DECISIONS Civil Procedure SETTLEMENT Unfair to categorically bar all future claims Plaintiffs were franchisees. Plaintiffs sued franchisors and main food supplier alleging they knowingly attempted to inf luence upward or discour- age reduction of prices for sup- plies charged by supplier to franchisees. Plaintiffs claimed franchisors breached franchise agreement. Plaintiffs alleged ongoing conspiracy. Action was certified as class action. Parties reached settlement. Under re- lease class members released all causes of action existing now or arising in future out of or relat- ing to purchase, sale, distribu- tion, promotion or marketing of supplies. Plaintiffs brought motion for approval of settle- ment agreement. Motion dis- missed. Proposed settlement was not fair and reasonable because of overbroad, unfair release. It was not in best inter- ests of class as whole. It was fair to have class members release their existing claims against defendants and it would be fair to bar claims that were con- tinuation of particular exist- ing claims. It was unfair to cat- egorically bar all future claims of types identified in statement of claim, which was possible in- terpretation of release. Matter of release's interpretation was arguable. 2038724 Ontario Ltd. v. Quiz- no's Canada Restaurant Corp. (Oct. 6, 2014, Ont. S.C.J., Per- ell J., File No. 06-CV-311330CP) 244 A.C.W.S. (3d) 539. Contracts PERFORMANCE AND BREACH Defendant put forward no evidence to support bald allegations business was illegal Plaintiff agreed to sell its busi- ness to defendant. Payment of balance of purchase price fell into arrears and parties entered into share purchase agreement in which defendant agreed to satisfy debt to plaintiff by pur- chasing all shares of companies and providing personal guar- antee. When defendant failed to pay, plaintiff commenced ac- tion. Plaintiff brought motion for summary judgment and motion was granted. Defendant appealed. Appeal dismissed. Evidence was undisputed that defendant did not comply with payment obligations un- der share purchase agreement. Defendant's contentions that business he purchased was il- legal and agreements contem- plated ongoing supply of new movies were not supported by record. Defendant put forward no evidence to support bald allegation that business was il- legal. None of the agreements between parties provided for ongoing supply of movies. De- fendant was required to put forward some evidence beyond mere statements to support his position and in absence of other evidence it was open to motion judge to accept plaintiff 's posi- tion. Motion judge thoroughly analyzed evidence in record and applied proper principles for granting summary judg- ment. HITS Entertainment Inc. v. Zaakir (Sep. 5, 2014, Ont. C.A., K.M. Weiler J.A., John Laskin J.A., and K. van Rensburg J.A., File No. CA C58284) Decision at 236 A.C.W.S. (3d) 109 was af- firmed. 244 A.C.W.S. (3d) 590. Family Law SUPPORT Father deliberately quit secure and well-paying job to avoid paying child support Parents were both 20 years old and had one child who was almost three years old. Child had always been in mother's care and he was doing well. Father's access had always been super v ised. Father had never paid any child suppor t. Father had quit his employ- ment and not found another job. Mother applied for child suppor t. Application granted. Father was young, healthy and employable. Father delib- erately quit secure and rela- tively well-pay ing job when he k new he had obligation to pay child suppor t. Father de- liberately created his own fi- nancial hardship. Father had not made diligent or appro- priate ef for ts to meet his child suppor t obligations. Income should be imputed to father at rate he was earning when he quit job. Father was ordered to pay child suppor t of $245 per month based on income of $30,000 per year, retroac- tive to Januar y 1, 2013. Young v. Ludewigt (Sep. 10, 2014, Ont. S.C.J., Pazaratz J., File No. F362/12) 244 A.C.W.S. (3d) 624. Insurance DISABILITY INSURANCE Canada Pension Plan dis- ability payment was direct, dollar for dollar setoff In November 1997, plaintiff purchased insurance policy CASELAW

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