Law Times

Law Times • February 9, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT Evidence SPOLIATION Adverse inference drawn that evidence intentionally destroyed to affect litigation Plaintiff was vessel owner who left his fishing vessel with defen- dant for routine maintenance. Defendant lifted vessel out of water and purported to secure it in cradle. About two weeks later, vessel fell during high wind and suffered damage to fibreglass hull. Defendant dis- posed of cradle material before marine surveyor attended to inspect vessel about two days after incident. Plaintiff brought action against defendant for damages for negligence. Action allowed. Plaintiff was awarded total of $269,206.85 as claimed. Adverse inference was drawn that evidence was intention- ally destroyed to affect litigation. Defendant ought to have known that litigation would be contem- plated by plaintiff and that dis- posing of cradle material would affect any future claim made by plaintiff. It was not necessary for party to receive actual notice of litigation. Rebuttable presump- tion was raised that evidence was unfavourable to defendant. Defendant had not provided sufficient evidence to rebut this presumption. Forsey v. Burin Peninsula Marine Service Centre (Oct. 20, 2014, F.C., E. Heneghan J., File No. T-298-12) 246 A.C.W.S. (3d) 699. Immigration INADMISSIBLE AND REMOVABLE CLASSES Conditional sentence did not represent term of imprisonment In 1989, applicant arrived in Canada from Vietnam and became permanent resident. In 2013, he was convicted on charge of producing marijuana and given conditional sentence of 12 months to be served in community. Officer of Cana- dian Border Services Agency referred applicant's file to Im- migration Division to decide whether applicant should be found to be inadmissible to Canada for having been con- victed of offence for which term of imprisonment greater than six months had been imposed, or offence punishable by maxi- mum term of imprisonment of at least 10 years. Applicant ap- plied for judicial review of offi- cer's decision. He asked court to overturn officer's decision and order another officer to recon- sider question of his inadmis- sibility to Canada. Application allowed. Applicant's conditional sentence of 12 months did not represent term of imprisonment greater than six months. Condi- tional sentence was not term of imprisonment within meaning of Immigration and Refugee Protection Act (Can.). Appli- cant's offence was punishable by maximum of seven years' incar- ceration. While maximum sen- tence was subsequently raised to 14 years, applicant was not pun- ishable by sentence of that du- ration. Officer should not have considered arrests and dropped charges that did not result in convictions. That rendered his decision unreasonable. Matter was referred back to another of- ficer for reconsideration. Tran v. Canada (Minister of Pub- lic Safety and Emergency Pre- paredness) (Nov. 4, 2014, F.C., James W. O'Reilly J., File No. IMM-7208-13) 246 A.C.W.S. (3d) 649. REFUGEE STATUS Impossible to ascertain how cognitive impairment did not explain contradictory testimony Claimant suffering from cog- nitive impairment found not credible. Refugee claimant was retired police officer from Tur- key who alleged well-founded fear of persecution in Turkey be- cause of his political views and because he had objected to law enforcement personnel, includ- ing his colleagues, brutalizing detainees and individuals in crowd control situations. Board concluded that claimant had failed to establish that he had well-founded fear of persecution in Turkey. Board based this find- ing on claimant's lack of cred- ibility and his lack of subjective fear, as evidenced by his delay in seeking refugee protection after his arrival in Canada. In con- cluding that claimant's evidence was not credible, Board noted that his testimony was confus- ing, hard to follow and contra- dictory, and suffered from con- tradictions and discrepancies without satisfactory reasons as to why this was case. As result of her ongoing concerns regarding quality of claimant's testimony, his counsel filed psychiatric re- port as post-hearing evidence which indicated claimant suf- fered from severe cognitive im- pairment. Board found that psy- chiatric report did not explain numerous problems with claim- ant's testimony and gave it little weight. Board dismissed claim and claimant applied for judi- cial review. Application granted. Board had itself observed that claimant's testimony was dif- ficult to follow, confusing and contradictory, and that some of his answers made little sense. It was impossible to ascertain from Board's reasons how or why it concluded that psychia- trist's finding of severe cogni- tive impairment did not explain why claimant was unable to con- sistently recall events giving rise to his claim for refugee protec- tion. Accordingly, Board's deci- sion was unreasonable. Ors v. Canada (Minister of Citi- zenship and Immigration) (Nov. 20, 2014, F.C., Anne L. Mactav- ish J., File No. IMM-5245-13) 246 A.C.W.S. (3d) 662. All evidence contradicted board's findings Refugee claimant was citizen of Afghanistan who alleged fear of persecution resulting from land dispute with powerful warlord brothers from Herat province. Claimant alleged that brothers had inf luence not only in Herat but throughout country, and also had connections to other national insurgent groups in Af- ghanistan, as well as to federal judiciary, which assertions were corroborated by documentary evidence before Board. No cred- ibility concerns were raised with either documentary or oral evi- dence. Board ultimately rejected claim on sole basis of internal f light alternative. Board con- cluded that brothers only had power and inf luence in Herat, and that they would unlikely pursue claimant should he move to Kabul. Claimant applied for judicial review. Application al- lowed; matter remitted to dif- ferently constituted panel for re-determination. Board unrea- sonably erred when it arrived at conclusion that claimant could seek protection in Kabul. Evi- dence regarding claimant's risk profile, personal situation, and objective country evidence, all contradicted Board's find- ings. Documentary evidence established that subjects of land feuds were at risk. Uncontested evidence showed land dispute in this case dated back to 1979 and directly impacted claimant when his father and brothers disappeared while addressing issue in 2011. Being sole remain- ing male member of his fam- ily meant that claimant alone retained legal title to disputed land, and he continued to be tar- geted and received death threats until he f led. Given acknowl- edged and uncontroverted land dispute, Board erred in coming to opposite conclusion than that revealed by documentary evi- dence. Documents, including those cited by Board, confirmed that brothers had connections to Taliban, Al Qaeda, Hezb-e-Esl- ami, and central and provincial Afghan governments. As result, brothers largely operated with impunity and their reach may extend beyond area of their im- mediate control. Evidence also established that it was not dif- ficult to track people down in Afghanistan since security con- scious neighbours and landlords would check into any newcom- er's background and messages were sent across country via chains of communication based on personal contacts. Hosini v. Canada (Minister of Citizenship and Immigration) (Oct. 22, 2014, F.C., Alan Diner J., File No. IMM-5492-13) 246 A.C.W.S. (3d) 663. FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Nation's power with respect to election did not originate from federal act or prerogative Appellant Nation, not-for-profit corporation, held election to elect board of directors, includ- ing Grand Chief and Deputy Grand Chief. Individual appel- lants were elected Grand Chief, Deputy Grand Chief and direc- tors. Respondent was not elected and he applied for judicial re- view in Federal Court. Appel- lants brought motion to strike out application on basis that Federal Court did not have ju- risdiction. Federal Court judge 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. 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available. Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: ȕ Over 27,000 lawyers listed ȕ Over 9,000 law firms and corporate offices listed ȕ Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: ȕ Federal and provincial judges ȕ Federal courts, including a section for federal government departments, boards and commissions ȕ Ontario courts and services, including a section for provincial government ministries, boards and commissions ȕ Small claims courts ȕ The Institute of Law Clerks of Ontario ȕ Miscellaneous services for lawyers Untitled-7 1 2014-10-29 11:13 AM

• Cover