Law Times

Law Times • February 23, 2015 Page 17 www.lawtimesnews.com FEDERAL COURT Crown ARMED FORCES Critical issue was whether veteran had been exposed to Agent Orange Veteran started serving in Ca- nadian Armed Forces around 1955. Veteran was allegedly exposed to herbicide known as "Agent Orange" in 1967. Vet- eran retired in 1975 when he was 43 years old. Veteran was diagnosed with prostate cancer when he was 63 years old. Vet- eran unsuccessfully applied for pension entitlement for pros- tate cancer. Veteran unsuccess- fully appealed to Veterans Re- view and Appeal Board and un- successfully sought reconsider- ation. All decisions concluded there was no evidence that vet- eran had been exposed to Agent Orange. Veteran unsuccessfully sought further reconsideration based on new evidence. Veteran brought application for judicial review. Application granted; matter remitted for re-deter- mination. Standard of review was reasonableness in light of prior authorities, and decision was not reasonable. Critical is- sue was whether veteran had been exposed to Agent Orange. Board chose to prefer findings of particular report that use of Agent Orange was limited over statements of veteran and his comrades that they had been exposed. Board read more into report than it actually stated. In particular, there was no clear finding in report that ordinary soldiers were restricted from spray sites and did not have access to these sites. Author of report acknowledged degree of exposure of individual to any chemical sprayed was in- determinable. Veteran should have been entitled to benefit of doubt pursuant to s. 39 of Vet- erans Review and Appeal Board Act (Can.). Nonetheless, deter- mination of whether veteran was exposed to Agent Orange and extent of any exposure was better left to board. McAllister v. Canada (Attorney General) (Oct. 17, 2014, F.C., Yves de Montigny J., File No. T-470-14) 246 A.C.W.S. (3d) 829. Customs and Excise Offences GENERAL Actual possession restricted to physical possession Plaintiff and wife were catch- ing flight to St. Martin when they were stopped by Canadian Border Services Agency officer. They told officer they did not have cash in amount of $10,000 CAD or more. Search revealed that plaintiff was carrying cur- rency worth $13,820.69 CAD. Officer seized funds and penal- ized plaintiff $2,500 before let- ting him leave with balance of funds. Plaintiff believed that he did not need to report money since he and his wife jointly owned it. Plaintiff appealed. Minister's delegate affirmed officer's decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Fi- nancing Act (Can.) had been violated and penalty was ap- propriate. Plaintiff appealed. Appeal dismissed. Term "actual possession" in s. 12 of Act did not imply ownership. Word "actual" excluded construc- tive possession and restricted meaning of phrase to physical possession. Plaintiff held mon- ey and wife could only access funds if he handed them to her so only he had actual posses- sion of funds and had to report funds pursuant to s. 12(3)(a) of Act. There was no reason to depart from plain language of s. 12(3)(a) and read into it excep- tion for joint owners travelling together. Section 12(1) of Act was strict liability offence and plaintiff's subjective intention was not relevant. Plaintiff did not make any attempt to clarify how much money he could car- ry given he was travelling with wife. Officer did not give advice to plaintiff. Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 29, 2014, F.C., John A. O'Keefe J., File No. T-145-10) 117 W.C.B. (2d) 261. Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Resolution of other grievances would in no way deal with reinstatement Applicant was 29 year career officer with RCMP. In 2007, applicant suffered spinal injury while engaged in sports activi- ties with his colleagues. In De- cember 2009, while stationed in Rome, Italy, applicant stum- bled on some cobblestones. His posting was permanently ter- minated and he was repatriated to Canada due to his disability and medical profile. Applicant filed six grievances. He sought restoration of financial losses, losses for pain and suffering, and losses arising out of failure to receive expected promo- tion. Matters did not move very quickly in RCMP grievance process. On March 13, 2013, applicant filed complaint with Canadian Human Rights Com- mission alleging discrimination based on medical disability and seeking reinstatement of his po- sition in Rome, as well as finan- cial compensation for number of specified losses, including for strain on his life. Following in- vestigation, early dispute reso- lution officer recommended that Commission should deal with complaint. However, Act- ing Chief Commissioner de- termined that applicant's com- plaint would not be heard until applicant's other grievances had been completed. Applicant applied for judicial review of decision. Application allowed. Resolution of other grievances would in no way deal with re- instatement, promotion, dam- ages for financial loss, damages for stress, and like. Decision not to hear, or to defer, was wholly unreasonable. Section 42(2) of Canadian Human Rights Act should not be read so that Commission may refuse to hear matter where those who administered alternative pro- cedures were themselves cause of delay. Matter was returned for redetermination by differ- ent person in accordance with reasons. D'Angelo v. Canada (Attorney General) (Nov. 24, 2014, F.C., Roger T. Hughes J., File No. T-871-14) 246 A.C.W.S. (3d) 888. Immigration REFUGEE STATUS Board accepted medical evidence yet gave it no weight Refugee Protection Division of Immigration and Refugee Board denied applicants refu- gee status. Board found ap- plicants suffered from post- traumatic stress disorder but condition was not necessarily due to events alleged by appli- cants. Board found there was no credible evidence to support refugee claim and applicants lacked credibility. Board indi- cated it did not need to hear in- formation on traumatic events and concluded that traumatic events had not occurred. Ap- plicants sought judicial review. Application allowed. Failure of applicants to establish basis for successful refugee claims by close family members was not reasonable basis for finding that mistreatment by government officials did not occur. Board had inaccurate view of what medical evidence said about applicants' ability to recall past events when facing stress of tes- tifying at refugee hearing. Board accepted medical evidence on trauma and that female appli- cant was vulnerable person yet gave it no weight when con- sidering claims and summons. Grounds and reasons did not reasonably support general negative credibility finding in situation where applicants were never questioned on direct ex- periences that caused them to leave country of origin. AB v. Canada (Minister of Citi- zenship and Immigration) (Sep. 18, 2014, F.C., James Russell J., File No. IMM-7691-13) 246 A.C.W.S. (3d) 891. Panel failed to consider evidentiary value of two letters supporting claim Refugee claimant was Bangla- deshi citizen of Buddhist faith who alleged fear of persecu- tion by Muslim fundamental- ist groups and political parties, based on his religion and for his involvement in Buddhist com- munity. Claimant alleged that he had been victim of targeted attacks by members of Awami League, both at his domicile and at Buddhist temple he at- tended, in addition to having been targeted through intimi- dation, death threats, loot- ing, and extortion at his store. Claimant alleged that police had been either irresponsive or of little assistance to his com- plaints. Claimant fled Ban- gladesh and came to Canada where he claimed refugee pro- tection. In support of claim claimant filed two letters from presidents of Buddhist organi- 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. 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