Law Times

Law Times • January 12, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT Immigration EXCLUSION AND EXPULSION Removal officer not required to undertake substantive review of children's best interests Applicant and her three chil- dren, aged 20 to 24, were citi- zens of Mexico. Applicant left Mexico allegedly to f lee threat- ening ex-husband and came to Canada in 2007. In June 2013, applicant married Canadian citizen with two children, aged 9 and 11. Applications for pre- removal risk assessment were dismissed in September 2013. Applicant alleged being prima- ry caregiver to husband's chil- dren. Removal order was issued. Applicants applied for stay of re- moval. Removal officer refused to grant stay. Applicant applied for judicial review of agent's de- cision. Application dismissed. Standard of review of removal officer's decision was reason- ableness. Reviewing court owed deference to removal officer. Re- moval officer noted that appli- cant did not cite children's best interest until two weeks prior to removal date, that applicant had only recently married children's father, and that she was not their biological mother. Removal of- ficer was not required to under- take substantive review of chil- dren's best interests. Removal officer had limited discretion. Youth protection agency report indicated that children's secu- rity and development were not compromised despite biological mother's issues. Evidence did not support applicant's prem- ise that children would be in precarious situation if she left. Removal officer's decision was reasonable. Vargas Ezquivel c. Canada (Min- istre de la Sécurité publique et de la Protection civile) (Oct. 20, 2014, F.C., Michel M.J. Shore J., File No. IMM-1052-14) 245 A.C.W.S. (3d) 392. PERSON IN NEED OF PROTECTION Only evidence of danger to applicant was speculative, remote, and unsubstantiated Applicant was Hungarian citi- zen who was victim of large hu- man trafficking ring in Canada. His statement was provided as evidence to support charges brought in Canada against Hungarian organized crime group who were involved with trafficking in human beings for Hungary. Applicant filed claim for protection. He feared that if he returned to Hungary, he would be harmed by Roma he implicated in crimes in Canada or by their family members or other members of their criminal organization. Refugee protec- tion division of Immigration and Refugee Board rejected application on ground that ap- plicant had not rebutted pre- sumption of state of protection and that viable internal f light alternative existed for applicant in Hungary. Applicant applied for judicial review of decision. Application dismissed. Board's decision was reasonable and constituted acceptable outcome in light of evidence on record and applicable legal principles. Board fully considered total- ity of evidence, including effec- tiveness of measures taken by Hungary. Board's conclusion with regards to internal f light alternative in Hungary was also reasonable. Board indicated that only evidence of danger to ap- plicant was speculative, remote, and unsubstantiated. If appli- cant entered witness protection program, he could benefit from such measures as personal pro- tection, change of identity, and change of residence. Cserkuti v. Canada (Minister of Citizenship and Immigration) (Oct. 8, 2014, F.C., Luc Martin- eau J., File No. IMM-4103-13) 245 A.C.W.S. (3d) 398. REFUGEE STATUS Errors in translation may have affected board's assessment of credibility Applicant, French-speaking citizen of Republic of Congo, re- ported incident of rape she had witnessed to police in Congo. Applicant was allegedly tortured and raped in police station, and detained several months, after reporting of incident. Appli- cant applied for refugee status in Canada. Hearing was held in English in Calgary and Edmon- ton. Refugee protection division of Immigration and Refugee Board found that applicant was not credible, and dismissed claim. Applicant applied for ju- dicial review of board's decision. Application granted. Decision set aside and matter remitted to different panel for redeter- mination. Prime consideration in hearings that touched upon refugee claimant's life and safety was understanding of language. Applicant did not speak Eng- lish. Counsel assigned to ap- plicant did not speak French. Interpreter's translation was not adequate. Board did not always understand what applicant was trying to say. Extent of errors in translation were not apparent during hearing. Errors in trans- lation may have affected board's assessment of credibility. There was serious breach of procedur- al equity. Bouanga c. Canada (Min- istre de la Citoyenneté et de l›Immigration) (Oct. 30, 2014, F.C., Luc Martineau J., File No. IMM-1017-14) 245 A.C.W.S. (3d) 405. Applicant did not have oppor- tunity to be properly heard Applicant, citizen of Russia, was politically active in Russia. Applicant was beaten by police and lost employment as result of political activity. Fearing for his life, applicant claimed refu- gee status in Canada. Refugee protection division found that applicant was not convention refugee or person in need of protection and dismissed appli- cant's claim. Applicant appealed to refugee appeal division. Ap- peal division concluded that applicant's new evidence was inadmissible, that applicant did not justify need for hearing, and that standard of review on ap- peal was reasonableness. Appli- cant applied for judicial review of appeal division's decision. Ap- plication granted. Real issue was whether it properly exercised role as appeal court towards refugee protection division and applied proper standard to its conclusions. Standard of review by reviewing court of appeal division's decisions was correct- ness. It could substitute its deci- sion for refugee protection divi- sion. Appeal division commit- ted error in showing deference to refugee protection division and applying standard of review of reasonableness. Applicant did not have opportunity to be properly heard. Court interven- tion was warranted. Question was certified as to extent of ap- peal division's examination on appeal from refugee protection division's decision. Triastcin c. Canada (Min- istre de la Citoyenneté et de l›Immigration) (Oct. 15, 2014, F.C., Michel M.J. Shore J., File No. IMM-5981-13) 245 A.C.W.S. (3d) 406. ONTARIO CIVIL DECISIONS Appeal LEAVE TO APPEAL Good reason to doubt correct- ness of decision to order mistrial Parties had invested 13 days in trial when judge ruled respon- dent's expert witness could not give evidence, so respondent indicated it would need to call many additional witnesses in- stead, and need more trial time. Additional trial time not avail- able for nine months and judge ruled having trial heard in in- stalments of that nature could result in miscarriage of justice, so ordered mistrial. Motion by applicants for extension of time to seek leave to appeal and for leave to appeal mistrial decision. Motion granted. Applicants missed seven-day time period to seek leave to appeal by mere days and provided good reason, and there was no prejudice to re- spondent, so appropriate to ex- tend time. There was good rea- son to doubt correctness of de- cision to order mistrial on basis of extended length of trial alone, when no other irregularities were identified. Issue of grant- ing mistrial due to trial length was matter of great importance to all litigants and development of law. Rosati v. Reggimenti (Sep. 23, 2014, Ont. S.C.J., G.A. Camp- bell J., File No. D/966/96) 245 A.C.W.S. (3d) 260. Arbitration AWARD All alleged errors potentially deci- sive to outcome of arbitration Tenant was company that leased stadium from municipal land- lord. Dispute resulted in settle- ment agreement that provided, inter alia, landlord could ter- minate lease in event of bona fide redevelopment plans for stadium. In event of termina- tion, tenant had option to lease another municipal property. Landlord terminated lease pur- 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. 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