Law Times

Page 14 January 19, 2015 • Law Times www.lawtimesnews.com Citizenship and Immigra- tion) (Sep. 10, 2014, F.C., Alan Diner J., File No. T-290-14) 245 A.C.W.S. (3d) 521. Immigration JUDICIAL REVIEW Public interest groups satisfied procedural requirements for intervention Refugee claimants were Mus- lim citizens of Kosovo who came to Canada after entering United States. Refugee claim- ants unsuccessfully applied for refugee protection. Immigra- tion and Refugee Board's Refu- gee Protection Division (RPD) relied on lack of asylum claim in United States and insuffi- cient evidence. Refugee claim- ants unsuccessfully appealed to board's Refugee Appeal Divi- sion (RAD), which applied rea- sonableness standard of review. Refugee claimants commenced application for judicial review. Public interest groups brought motion for intervener status. Motion granted. This was ap- parently first case in which ap- pellate function of RAD was fo- cus. Given nature of case, it was apparent that issue of role and function of RAD transcended parties and particular facts of this case. Public interest groups were well established organiza- tions dedicated to advocating on behalf of refugees. Public interest groups satisfied proce- dural requirements for inter- vention. Public interest groups, their clients, and their potential clients all had genuine interest in standard of review issue in this judicial review. Public inter- est groups provided different in- sight and perspective from that of refugee claimants. Allowing public interest groups to inter- vene was in interests of justice because issues in this judicial review were of potential prec- edential value. Huruglica v. Canada (Minister of Citizenship and Immigration) (Aug. 22, 2014, F.C., Michael L. Phelan J., File No. IMM-6362- 13) 245 A.C.W.S. (3d) 646. Parliament wanted to confer true appellate function on Refugee Appeal Division Refugee claimant was citizen of Cambodia who came to Canada on student visa and when he ar- rived made refugee claim. Refu- gee Protection Division (RPD) rejected claim, not finding it credible. Claimant appealed this decision before Refugee Appeal Division (RAD), alleg- ing that RPD erred in its assess- ment of his credibility and that it acted in biased manner. RAD dismissed appeal and claimant applied for judicial review, con- tending that RAD's decision was f lawed since RAD applied stan- dard of reasonableness to RPD's decision when it should have applied standard of correctness. Claimant contended that Par- liament intended to create full appeal when it created RAD, so that tribunal that could reas- sess evidence and substitute its own decision. Issue was against which standard of review were RPD's findings of facts review- able before RAD. Application granted. RAD misinterpreted its role as appeal body in hold- ing that its role was merely to assess, against standard of rea- sonableness, whether RPD's decision was within range of possible, acceptable outcomes. RAD must perform its own as- sessment of all of evidence in or- der to determine whether RPD relied on wrong principle of law or misassessed facts to point of making palpable and overrid- ing error. Parliament wanted to confer true appellate function and broad power of intervention on RAD, thus allowing RAD to dispose of merits of appeals and not only to determine whether RPD's decision was made in rea- sonable manner. Eng c. Canada (Ministre de la Citoyenneté et de l›Immigration) (Jul. 17, 2014, F.C., Michel M.J. Shore J., File No. IMM-7281-13) 245 A.C.W.S. (3d) 644. REFUGEE STATUS Officer did not make explicit finding as to claimant's sexual orientation Refugee claimant was citizen of Egypt who was originally Muslim and who converted to Christianity in June 2013. Claimant alleged that he was homosexual and that was in ho- mosexual relationship with H. Claimant alleged that he and H were attacked in 2012 by Mus- lim Brotherhood and that H died as result of attack. Claim- ant also alleged that his conver- sion to Christianity exposed him to danger in Egypt. Officer concluded that claimant had not established that he was in ho- mosexual relationship with H or that he was attacked in 2012 by Muslim Brotherhood. Offi- cer also concluded that claimant was unable to establish that his conversion to Christianity ex- posed him to any risk at hands of his family in Egypt. Officer rejected pre removal risk assess- ment application and claim- ant applied for judicial review. Application granted; matter referred back to another officer for reconsideration. Officer did not make any explicit finding as to claimant's sexual orientation, element which was central to his PRRA application. Officer lim- ited her analysis to claimant's claim of relationship with H and to attack of 2012, of which both were victims. Officer did not ex- plicitly conclude that claimant was not homosexual. To make determination as to person's homosexuality was difficult task. In order to do so decision- maker must at least consider all of evidence submitted in that regard and make decision with reasons. Officer's failure to do so was error sufficient to invalidate officer's decision and refer mat- ter back to another CIC officer for reconsideration. Referring matter back was necessary since officer, who failed to make find- ing regarding claimant's sexual orientation, recognized that documentary evidence estab- lished that homosexuals were at risk in Egypt and that they were subject to some level of violence and discrimination. Kandel c. Canada (Ministre de la Citoyenneté et de l›Immigration) (Jul. 7, 2014, F.C., Simon Noël J., File No. IMM-6752-13) 245 A.C.W.S. (3d) 658. SELECTION AND ADMISSION Officer incorrectly elevated test for best interests of child Applicants alleged they were subject to racial discrimination. Youngest child was subjected to physical and emotional abuse by former teacher. As result of abuse, child developed heart murmur and post-traumatic stress disorder. Immigration officer refused applicants' ap- plication for permanent resi- dence from within Canada on humanitarian and compassion- ate grounds. Officer found ap- plicants did not establish that they would face unusual and undeserved or disproportionate hardship if they were returned to country of origin. Officer determined applicants' level of establishment in Canada did not merit special consideration that warranted exemption. Ap- plicants sought judicial review. Application granted. Officer incorrectly elevated test for best interests of child. Officer was on search for undeserved or dis- proportionate hardship. Officer did not turn his mind to iden- tifying best interests of child. Officer did not have regard to child's circumstances and did not determine what would be in child's best interests. Requir- ing evidence of severe harm or hardship to child was incorrect in context of analysis of best in- terests of child. Etienne v. Canada (Minister of Citizenship and Immigration) (Oct. 6, 2014, F.C., Donald J. Rennie J., File No. IMM-6169- 13) 245 A.C.W.S. (3d) 661. ONTARIO CIVIL DECISIONS Civil Procedure COSTS Respondents were to submit to examination but they were merely witnesses Applicant sued number of de- fendants for allegedly sending or causing to be sent unsolic- ited advertisements by facsimile transmission, which was tor- tious in state of Florida. Letters rogatory were issued in Florida court that requested co-oper- ation of court to compel video testimony of respondents who resided in Ontario. Applicant applied for order enforcing let- ters rogatory. Application was granted. Applicant applied for costs. Application dismissed. Respondents were not parties to underlying Florida action or person against whom any substantive claim was being advanced. Respondents were to submit to examination but they were merely witnesses. Parties should bear own costs. CIN-Q Automobiles Inc. v. Flem- ing (Oct. 8, 2014, Ont. S.C.J., Parayeski J., File No. 1445382) Additional reasons to 243 A.C.W.S. (3d) 328. 245 A.C.W.S. (3d) 530. PLEADINGS Undertaking to disclose certain information to spouse was inherent to relationship Plaintiff alleged in her state- ment of claim that parties began romantic relationship in July of 2002 and engaged in protected sexual intercourse. Subsequent- ly, they began to have unprotect- ed sex on basis of defendant's representations that he did not have any sexually transmitted diseases and that he had recently tested negative for HIV. Parties were married in August 2003. In spring of 2012, relationship broke down. In November 2012, plaintiff tested positive for Her- pes Simplex Virus-Type 2 (HSV- 2). Plaintiff claimed damages for sexual assault and battery, intentional or negligent trans- mission of HSV-2, intentional or negligent misrepresentation and breach of fiduciary duty. Defen- dant brought motion to strike portions of plaintiff 's statement of claim related to allegations of breach of fiduciary duty, as fail- ing to disclose reasonable cause of action. Motion dismissed. Statement of claim, when read as whole, pleaded necessary ele- ments for fiduciary duty. It was open to court to find that that undertaking to disclose certain information to spouse was in- herent to spousal relationship. It was not plain and obvious that per se or ad hoc fiduciary relationship alleged to arise be- tween parties from marriage would fail. There were no public policy concerns that would mil- itate against that finding. Vaseloff v. Leo (Oct. 3, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-13-493846) 245 A.C.W.S. (3d) 554. Contempt of Court GROUNDS Father's refusal to deliver child to exchange place was deliberate decision Parties were married for four years and had one child. Child lived with father and had access to mother. Mother claimed that father had refused her access to child. Mother was not currently working due to health problems. Both mother and father brought motions for contempt. Mother's motion granted; father's mo- tion dismissed. On many occa- sions father refused to transport child to exchange place. Mother had no car and there was no conceivable way in which she could pick up child at any other location. Father's refusal to de- liver child to exchange place when exchanges of child were to be made was deliberate deci- sion. Result of decision was that mother was deprived of virtual- ly all physical contact with child. Father knew that would be re- sult because mother had no ve- hicle. Father's explanations as to why he did not drive child were not accepted. Order was clear and unequivocal; order was de- liberately disobeyed; and breach was proven beyond reasonable doubt. Father was in contempt. Father had not established that mother deliberately violated any provision of order and mother was not in contempt. Carr-Carey v. Carey (Sep. 18, 2014, Ont. S.C.J., Gray J., File No. 4144/14) 245 A.C.W.S. (3d) 576. PUNISHMENT Respondent to be incarcerated for 90 days intermittently until outstanding arrears paid Final default hearing order re- quired payment of all costs, all arrears and all subsequent ac- cruals of ongoing spousal sup- port. Respondent agreed to order. Full amount of arrears owed at time of motion was $899,626.20. Applicant brought motion for warrant of com- mittal for respondent's failure to comply with terms of final default hearing order. Motion granted. Fact that respondent's mother was in poor health was not relevant to his ability to pay. Order was made on con- sent. Respondent was payor who would attempt to use any reason to avoid having to make support payments in amount he acknowledged and had abil- ity to pay. There had been no material change in respondent's circumstances since order was made. Warrant of committal was issued. Respondent was to be incarcerated for 90 days, to be served intermittently each weekend or until outstanding default was cured. Ontario (Director, Family Re- sponsibility Office) v. Van West- erop (Sep. 19, 2014, Ont. S.C.J., T.A. Platana J., File No. Ottawa FC-00-380-E4) 245 A.C.W.S. (3d) 578. Family Law CUSTODY Mother put children in middle of her conflict with father Parties were married on Nov. 11, 1990, separated on March 3, 2009, and were divorced on Nov. 10, 2010. They had 15 year- old son and 12 year-old twin daughters. Father applied for ac- cess to children. Court ordered that children be assessed by pro- fessional, who recommended therapeutic counselling to re- pair children's relationship with their father. In January 2014, with consent of parties, court ordered them to follow parent- ing plan, as recommended by assessor, whereby mother was to use online program to keep father informed of children's ac- tivities and facilitate his access to them, and agreed to cooper- ate with parenting coordinator and therapeutic re-integration counsellor. By May 2014, par- ties had completed phase 1 of parenting plan, and parenting coordinator was ready to de- termine whether family could proceed to phase 2, involving CASELAW

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