Law Times

Page 14 March 9, 2015 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Appeal GROUNDS DNA evidence could not sup- port conviction without further evidence of similar baton Jury finding accused guilty of multiple offences arising from home invasion where el- derly couple beaten with baton. Crown leading evidence that accused's DNA found on two bandanas recovered from scene. DNA expert agreeing they could not say when accused's DNA was placed on bandanas and agreed person wearing them during robbery may not have deposited DNA on them. Police seizing baton similar to that used in robbery from ac- cused two months later. Victim testifying as to differences in detail from weapon used in at- tack. Accused's conviction ap- peal dismissed. Jury's verdicts not unreasonable. DNA evi- dence could not support convic- tion without further evidence of similar baton. DNA expert's evi- dence could not include accused as perpetrator of robbery. Jury could conclude victim's inaccu- rate description of details arose from circumstances in which he observed baton. Appropriate to take accused's failure to testify into account in holding verdicts reasonable. R. v. Wills (Nov. 20, 2014, S.C.C., Rothstein J., Cromwell J., Mol- daver J., Karakatsanis J., and Wagner J., File No. 35804) Deci- sion at 112 W.C.B. (2d) 2 was af- firmed. 117 W.C.B. (2d) 439. FEDERAL COURT Administrative Law FREEDOM OF INFORMATION No obligation to disclose documents that could compromise security of standardized tool Canada Revenue Agency (CRA) employed employee. Employee did not pass simulation test for new position. Employee's request for documents was de- nied. Employee made request to have documents disclosed under Privacy Act (Can.). First page of integration booklet was sent to applicant and state- ment that more than 60 pages had been redacted but could be made available for consultation under Act. Employee did not avail himself of this option be- cause he considered conditions on consultation more stringent than another CRA offer where- by disclosure would be made to representative of applicant. Of- fer of CRA was designed to of- fer more information than what CRA was required to disclose. Applicant did not find represen- tative. Assistant Commissioner of CRA concluded applicant was not treated arbitrarily even though applicant was not given access to relevant feedback in- formation because by his own choice he did not use avail- able mechanism for accessing that information, finding it too inconvenient. Employee chal- lenged decision to restrict ac- cess to information pertaining to staffing process. Application for judicial review dismissed. Provisions of Canada Revenue Agency Act, fully applied. Em- ployer was not required to dis- close. Applicant did not show why conditions should not be imposed, since starting point was that no disclosure needed to be made. Where there was no obligation to disclose docu- ments that could compromise security and integrity of stan- dardized tool, applicant could not validly complain about more generous access and ar- gued that disclosure should be to him and not his representa- tive. Evidence did not establish that conditions imposed con- stituted constructive refusal to provide protected information that application would have. Decision was reasonable. It was applicant's choice not to accept conditions. Veillette c. Agence du revenu du Canada (Aug. 19, 2014, F.C., Yvan Roy J., File No. T-463-13) 247 A.C.W.S. (3d) 249. Civil Procedure TRIAL Rules pertaining to service and filing of motions ignored at peril of moving party Plaintiff owned sailboat. First corporate defendant owned steel hull sailing vessel. Second corporate defendant operated business providing vessel re- pair and maintenance services. First corporate defendant hired second corporate defendant to work on steel hull sailing vessel. Plaintiff alleged that grinding work done on steel hull sail- ing vessel caused dust and de- bris to settle on plaintiff 's sail- boat causing damage. Plaintiff sought order against defendants for repair and survey fees and damages for loss of use. Plaintiff brought motion for summary judgment. Plaintiff amended notice of motion to have mat- ter proceed as summary trial. Defendants did not respond with responding motion re- cord. Defendants sought leave to bring non-suit motion at end of plaintiff 's summary trial sub- missions. Defendant asserted they were entitled to bring non- suit motion as of right. Leave for defendants to bring non-suit motion was denied on short notice. Defendants were not en- titled to bring non-suit motion as of right and without notice at end of plaintiff 's summary trial submissions. Defendants' motion for non-suit was not permissible. Rules pertaining to service and filing of motions were ignored at peril of moving party. Motions were to be com- menced by notice of motion in prescribed form. Service and filing of notice of motion and affidavits was to be at least three days before day set out in notice for hearing motion. Motion was brought in context of summary trial and no authority was cited in support of proposition that non-suit could be brought in such context. There was doubt as to whether non-suit motions were appropriate in context of summary trial. Non-suit mo- tion would not succeed even if it were brought in timely manner and it was appropriate in con- text of summary trial. Plaintiff put forward some evidence and made out prima facie case with respect to causation. Defen- dants had ample opportunity to file response to summary judg- ment motion and made strate- gic decision not to do so. Defen- dants were bound by decision and their motion record was not to be filed. 0871768 B.C. Ltd. v. "Aestival" (The) (Nov. 5, 2014, F.C., Cecily Y. Strickland J., File No. T-1625- 12) 247 A.C.W.S. (3d) 325. Immigration PERSON IN NEED OF PROTECTION Board failed to consider all grounds made in applicant's claim Application for judicial re- view of decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, wherein board deter- mined that applicant was nei- ther Convention Refugee nor person in need of protection. Applicant was 33-year-old citi- zen of Libya. When civil war broke out in Libya in February 2011, applicant was living and studying in Montreal, having previously obtained student visa. Due to political and secu- rity developments in his home country, applicant became afraid to return to that country, fearful that he would be targeted as result of his Amazigh ethnic- ity and inter-factional violence. He made claim for refugee pro- tection in Canada on August 22, 2011. Situation in Libya de- teriorated in period between October 2011 and March 2013, when claim was heard by RPD. In that period, applicant had become object of death threats because he expressed his opin- ions in internet forums about rights of Amazigh, and about importance of new govern- ment being secular and civil- ian. Board found that applicant could benefit from reasonable internal f light alternative in other parts of Libya, and that he was not therefore entitled to international protection. Ap- plication allowed. Board failed to consider all grounds made in applicant's claim, under either s. 96 or s. 97 of Immigration and Refugee Protection Act (Can.). Moreover, board was unreason- able in its internal f light alter- native analysis. There was evi- dence before board, by way of an e-mail threat, addressed directly and solely to applicant, that he would be killed should he come through Tripoli airport. If board wanted him to reach in- ternal f light alternatives, it failed to state how he would avoid go- ing through Tripoli airport, or alternate routes to attend places of supposed safe haven. Fur- thermore, board failed to ad- dress evidence of applicant in which he said that threat against him extended beyond Tripoli to other areas of country. Decision was remitted for reconsidera- tion. Ajelal v. Canada (Minister of Citizenship and Immigration) (Nov. 19, 2014, F.C., Alan Diner J., File No. IMM-4522-13) 247 A.C.W.S. (3d) 417. Board unreasonably overstated evidentiary burden on applicant Panel of Immigration and Refu- gee Board found applicant's ref- ugee claim to be credible. Board denied claim on basis applica- tion failed to provide adequate proof of his identity. Applicant sought judicial review. Applica- tion granted. Board's treatment of issue of identity was unrea- sonable. Board misdescribed evidentiary burden on appli- cant. Board unreasonably dis- counted evidence in applicant's favour. Board unreasonably overstated evidentiary burden on applicant by requiring him to provide all relevant docu- ments relating to and definitive proof of his identity. Board did not consider all of evidence re- lating to applicant's citizenship. Board faulted applicant for not obtaining Nigerian passport even though he had been given time after hearing to obtain one. Board's instruction that appli- cant would be given time to ob- tain either school documents or passport or both created unrea- sonable expectation that school documents would allay its con- cerns about applicant's identity. It was unreasonable for board to discount probative value of school documents without ex- planation, having given impres- sion that they would provide ad- equate proof of citizenship. Evbuomwan v. Canada (Minister of Citizenship and Immigration) (Nov. 25, 2014, F.C., James W. O'Reilly J., File No. IMM-3545- 13) 247 A.C.W.S. (3d) 419. SELECTION AND ADMISSION Children awarded dam- ages of $27,500 each for delay in processing application Applicants were orphans from Burundi of Hutu ethnicity. Ap- plicants were accepted as refu- gees of Canada in 2008 spon- sored by Canadian government. In 2001, uncle and guardian of applicants filed sponsor- ship application on their behalf which was refused twice in 2002 and 2006. Applicants brought claimed damages stemming from delays in processing appli- cation for permanent residence and alleged faults by Crown ser- vants in twice refusing sponsor- ship application and children's application for humanitarian and compassionate exemption. Action allowed in part. Chil- dren were awarded damages of $27,500 each for period of 2006 to 2008. Guardian was awarded $10,000 for impact of decision on him. Action taken more than eight years after facts was laid in respect of negative decision in 2002. Discrepancy between processing of applicants' appli- cation and decision of respon- dent's officer on one hand and conduct of reasonably cautious and diligent person placed in same circumstances on other hand was sufficient to incur respondent's extra-contractual liability toward applicants. Re- spondent's officer did not seek to know applicants' real situa- tion, did not even consider fact that applicants were waiting for more than five years to be re- united with guardian who was Canadian citizen. Respondent's officer did not give processing of application for exception, at- tention and diligence required and his conduct was not that of reasonably cautious and diligent person placed in same circum- stances. Nkunzimana c. R. (Jul. 23, 2014, F.C., Jocelyne Gagné J., File No. T-1967-10) 247 A.C.W.S. (3d) 430. Police DISCIPLINE Commissioner held allegations against applicant as if they had been actually proven Applicant was staff sergeant in Royal Canadian Mounted Police (RCMP). 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