Law Times

Law Times • March 2, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT OF APPEAL Courts JURISDICTION Absence of formal order should not be impediment to right to have findings reviewed Court had to determine if it had jurisdiction to hear appeal from Further Reasons in light of fact that no formal order was ren- dered by judge. In 2007, Canadi- an Security Intelligence Service (CSIS) applied to Federal Court to obtain warrant to assist in investigation of threat-related activities CSIS believed indi- viduals would engage in while travelling outside of Canada. Justice dismissed warrant ap- plication on basis that Federal Court did not have jurisdiction to authorize CSIS employees to conduct intrusive investigative activities outside of Canada in circumstances where activi- ties authorized by warrant were likely to constitute violation of foreign law. In 2009, CSIS asked Federal Court to revisit and dis- tinguish justice's 2007 decision. Another judge was persuaded to issue warrant authorizing CSIS to intercept foreign telecommu- nications and conduct searches from within Canada. Judge reached this conclusion based upon legal argument different from that before first justice and upon description of facts con- cerning methods of interception and seizure of information dif- ferent from that put before first justice. Another judge issued order requiring counsel for both Communications Security Es- tablishment Canada and CSIS to appear before him. Judge was of view that information that had been before justice in 2007 ap- plication was not presented to Federal Court in 2009 applica- tion or in any subsequent appli- cation for Domestic Interception of Foreign Telecommunica- tions and Search (DIFTS) war- rant. Judge concluded that CSIS breached its duty of candour by failing to disclose to Federal Court in DIFTS warrant appli- cations that it intended to make requests to foreign agencies to intercept telecommunications of Canadians abroad and that CSIS had no lawful authority under s. 12 of Canadian Security Intelli- gence Service Act to make such requests and s. 21 of Act did not allow court to authorize CSIS to request that foreign agencies in- tercept communications of Ca- nadians travelling abroad. Judge made going forward directions of disclosure to courts. No order was issued by judge and he de- nied request by Attorney General that order issue ref lecting judge's views. Court determined it had jurisdiction to hear appeal. Pro- ceeding before judge had charac- ter of generalized inquiry as op- posed to continuation of warrant application. Given this and sig- nificance of judge's finding that CSIS had repeatedly failed in its duty of candour, absence of for- mal order should not be impedi- ment to appellant's right to have judge's findings of fact and law reviewed. Findings were declara- tory in nature. They were of such importance that they could not be immunized from review. X, Re (Jul. 31, 2014, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and Robert M. Mainville J.A., File No. A-145-14) Decision at 111 W.C.B. (2d) 847 was af- firmed. 117 W.C.B. (2d) 364. FEDERAL COURT Immigration PERSON IN NEED OF PROTECTION Decision was unreasonable as pro- cess of critical analysis not followed Refugee claimant was Roman Catholic Christian citizen of Bangladesh who alleged fear of persecution by Muslim ex- tremists. Claimant alleged that on way home from church he had been accosted by five Muslim men, one of whom had extorted money from him previous year. Claimant alleged that men identified themselves as being members of Muslim extremist group and that they threatened him and berated him for promoting Christian- ity and denigrating Islam. RPD found that men were only inter- ested in extorting money from claimant, and that claimant lacked credibility because he had not sought advice or as- sistance from priest. RPD de- nied claim. Claimant applied for judicial review. Application granted; decision under review set aside and matter referred back for redetermination by differently constituted panel. Claimant had given clear, direct evidence that he did not seek assistance from priest because priests had suffered from get- ting involved in these disputes. RPD's implausibility finding was unsupported speculation, and therefore decision under review was made in reviewable error that rendered it unrea- sonable. RPD was required to find what might reasonably be expected of Christian in Ban- gladesh who suffered incident of religious persecution and extortion by extremist Mus- lim men, make findings of fact about claimant's response and conclude whether response conformed with what might be reasonably expected. As this process of critical analysis was not followed, decision was un- reasonable. Rozario v. Canada (Minister of Citizenship and Immigration) (Nov. 4, 2014, F.C., Douglas R. Campbell J., File No. IMM- 4349-13) 247 A.C.W.S. (3d) 178. ONTARIO CIVIL DECISIONS Administrative Law JUDICIAL REVIEW Court did not have inherent jurisdiction to require respondent to produce record Applicant filed complaint of professional misconduct against engineer and his company with respondent association. Re- spondent's complaints commit- tee determined there was no ev- idence of professional miscon- duct of significant nature and decided not to refer complaint to discipline committee. Ap- plicant commenced application for judicial review and asked respondent to file record of pro- ceedings or, alternatively, pro- vide to him all documents relat- ing to investigation, proceeding and decision so that he could do so. Respondent denied request, claiming no record needed to be filed. Applicant brought motion for order requiring respondent to disclose above- noted documents including complaint summary, response and other documents referred to in decision, all evidence and submissions provided by any- one other than himself, any in- ternal notes and memoranda, all audio recordings, including voicemail, all communications, including letters and e-mails, witness interview notes and any other relevant documents. He claimed court could not con- duct proper judicial review of either investigation or decision without those documents. Re- spondent submitted that if any record was necessary, it should consist only of complaint form and materials filed by applicant, documents before complaints committee at time decision made, and that were not privi- leged, and reasons for decision itself. Motion denied. Under s. 24(1) of Professional Engineers Act (Ont.) (PEA), complaints committee required to conduct proper investigation of com- plaints. Under s. 24(2) of Act, it was permitted, not required, to refer complaint to discipline committee. In absence of man- datory language, decision to not refer did not constitute statutory power of decision. Section 10 of Judicial Review Procedure Act (Ont.) (JRPA), did not, therefore, apply to require decision maker to file record of proceedings. Court did not have inherent ju- risdiction to require respondent to produce record in absence of statutory power of decision. Re- spondent should not be required to provide anything more than material already mentioned. Harrison v. Assn. of Professional Engineers of Ontario (Nov. 12, 2014, Ont. S.C.J., Robert N. Be- audoin J., File No. 14-1999) 247 A.C.W.S. (3d) 2. Civil Procedure DEFAULT Court erred in failing to recognize mother's default not deliberate Parties had 12-year-old and 10-year-old children. By time of hearing, older child had lived with father for five years and younger child always lived with mother. Parties had not been co-operative in providing each other with access. When fa- ther applied for custody of both children, judge first ordered he have access to younger child at his parents' house. When mat- ter returned, mother was noted in default and judge summarily proceeded on unsworn affidavit of father that child had no stabil- ity and moved frequently, result- ing in poor school performance, and that mother had made no ef- fort to see child living with father. When mother learned of order, she promptly retained counsel to have order set aside, but was unsuccessful. Appeal by mother 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. and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! 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