Law Times

Page 14 March 16, 2015 • Law Times www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Applicant not prejudiced by approach when he knew resi- dency was requirement Applicant was member of re- spondent who was nominated as candidate in election. Ap- plicant swore declaration that he met eligibility requirements for candidacy. Applicant was elected as councillor. Elections officer received complaint that applicant did not meet residen- cy requirements of election law. Appeal committee held hear- ing. Applicant asserted he was not permitted to attend hearing. Appeal committee requested documents from applicant but he did not respond. Appeal committee decided to remove applicant from his position as councillor due to his ineligibil- ity to run for council under First nation election law. Applicant sought judicial review. Applica- tion dismissed. There was no procedural unfairness. Appli- cant was not prejudiced by ap- proach when he knew residency was requirement. Applicant was made fully aware of case he had to meet and what appeal com- mittee required him to do. Ap- plicant was given reasonable opportunity to present his case. Election law was not followed to letter, but applicant was in- formed orally and in writing that his election as councillor was being questioned because his residency was in doubt. Ap- plicant made no effort to attend hearing. Applicant could not shield himself from fact that he knew his residency was in doubt when he accepted nomination by citing formalities of election law. Appeal committee did not unreasonably interpret election law and assume jurisdiction to deal with complaint against ap- plicant in way it did. Jacko v. Cold Lake First Nations (Nov. 21, 2014, F.C., James Rus- sell J., File No. T-1656-13) 247 A.C.W.S. (3d) 493. Administrative Law JUDICIAL REVIEW Incompetent representation led to violation of procedural fairness Foreign national was 73-year- old citizen of El Salvador who had three children, two of whom were Canadian citizens who f led El Salvador in 1980s, and third who f led country in 2010 and was granted refugee protection in Canada in 2012. Foreign na- tional came to Canada in 2011, on visitor's visa. In 2012, foreign national filed unsuccessful Hu- manitarian and Compassion- ate (H&C) application under s. 25(1) of Immigration and Refu- gee Protection Act (Can.), as means of obtaining permanent residence in Canada. Applica- tion was prepared using services of immigration consultant who was intervener in judicial review application. Foreign national al- leged that incompetence of im- migration consultant in omit- ting crucial evidence regarding four key areas of her case led to failure of meritorious H&C ap- plication. Application granted; matter sent back to CIC for re- determination. Court's role in judicial review context not to take place of professional regu- lator. Court must determine whether omissions resulted in prejudice to foreign national without which, on basis of rea- sonable probability, outcome would have been different. Tri- partite test satisfied. Incompe- tent representation led to viola- tion of procedural fairness. It was beyond question that four missing items, had they been jointly included in submissions, could well have led to different H&C result. Guadron v. Canada (Minister of Citizenship and Immigration) (Nov. 19, 2014, F.C., Alan Diner J., File No. IMM-1484-13) 247 A.C.W.S. (3d) 648. Communications Law ELECTRONIC COMMUNICATIONS Assumption that requirement to file application for transfer quali- fied as detriment was flawed Applicant acquired licenses in 58 service areas for which it paid $880 million. Eight differ- ence blocks of spectrum were made available for auction. Three blocks were set aside for bidding exclusively by new en- trants. Applicant was not new entrant. Applicant asserted that it was less aggressive on bidding because of minister's represen- tations that led applicant to be- lieve that after five years there would be possibility that it could pursue arrangements with new entrants to acquire their spec- trum. Minister adopted deemed transfer requirement as matter that would require ministerial approval before transfer of spec- trum licenses would take effect. Applicant sought declaratory relief. Application dismissed. Jurisdiction given to Com- missioner of Competition and Competition Tribunal by Com- petition Act (Can.), did not oust jurisdiction of minister to made deemed transfer requirements at issue. Minister had statutory authority to establish deemed transfer requirement. Appli- cant's argument as to estoppel failed. Minister did not make representation that would lead reasonable person to believe that after five years acquisition or license of set-aside spectrum would be unregulated by min- ister. Applicant's submission that it suffered detrimental reli- ance rested on speculative and fatally f lawed assumption that requirement to file application for deemed transfer qualified as detriment. Telus Communications Co. v. Canada (Attorney General) (Dec. 2, 2014, F.C., Roger T. Hughes J., File No. T-1295-13) 247 A.C.W.S. (3d) 553. Immigration INADMISSIBLE AND REMOVABLE CLASSES This was rare case where court should exercise discretion to inter- vene before decision rendered Foreign national was citizen of Syria who had been in Canada since 1999. Foreign national was granted refugee status in 2000. Foreign national applied for per- manent residence in 2000 and in 2001 security certificate was issued against him which was subsequently quashed. Foreign national's permanent residence application was terminated in 2002 without notice to him. In 2008 second security certificate was issued which was quashed in 2009. Foreign national had been held in detention for seven years. Foreign national brought fresh permanent residence ap- plication on humanitarian and compassionate grounds in 2010, which was accepted for process- ing from within Canada subject to completion of medical and security assessments. In 2012 foreign national filed applica- tion for leave and for judicial review seeking order of man- damus to compel Minister of Citizenship and Immigration to make decision on his request for permanent residence. Leave was granted and application was set down for hearing on September 10, 2013. Procedural fairness letter was delivered by e-mail to foreign national's lawyer on September 6 2013 indicating that Minister was considering finding foreign national inad- missible under paragraph 37(1) (b) of Immigration and Refu- gee Protection Act. Matter was adjourned sine die. Foreign na- tional brought application for declaration that question of his inadmissibility was subject to doctrines of issue estoppel, res judicata and abuse of process. Foreign national also sought injunction enjoining Minister of Citizenship and Immigration from finding him inadmissible pursuant to ss. 34(1) and 37(1) (b) of Act on basis of any of al- legations that were before court in second security certificate proceedings. Motion was grant- ed staying determination of foreign national's admissibility and application for permanent residence in Canada until un- derlying application for judicial review in this matter had been decided. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness brought motion for order that application for leave and for judicial review was premature. Issue whether foreign national's request for re- lief was premature, in that final decision on his application for permanent residence had not been made and would not be made until after he responded to procedural fairness letter. Ministers' motion dismissed. This was one of rare cases where court should exercise its discretion to intervene before administrative decision has been rendered. Court not satis- fied that foreign national had alternative remedy available to him that was adequate effective recourse to allegations against him under paragraph 37(1)(b). Factors favouring intervention outweighed those that support- ed deference to administrative function. Exceptional circum- stances pointing to finding of abuse of process met clear and obvious standard which war- ranted judicial intervention at this stage. Motion was therefore dismissed and court upheld stay 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! You can search by city, legal specialty, or name for listings and contact information. Find the legal expertise you need at www.CanadianLawList.com. Untitled-2 1 2015-03-11 7:53 AM

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