Law Times

Page 18 April 20, 2015 • lAw Times www.lawtimesnews.com into tax credit. Rookie Blue Two Inc. v. R. (Mar. 11, 2015, Ont. S.C.J., F.L. Myers J., File No. CV-14-499450) 250 A.C.W.S. (3d) 354. FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Decision to appoint third party management to ensure delivery of essential social programs was reasonable Application for judicial review to set aside decision of Minister of Indian Affairs and North- ern Development Canada, as carried out by Aboriginal Af- fairs and Northern Develop- ment Canada (AANDC) to place applicant, Thunderchild First Nation (TFN) under third party management following its refusal to sign Aboriginal Recipient Funding Agree- ment (ARFA) for 2014-2015 fiscal year. TFN chose not to sign ARFA because of previous stated concerns about absence of consultation; fact that agree- ment was affording wider dis- cretion to Minister; insufficient funding; and requirement that Band Council prepare consoli- dated audit. Decision had been taken to place TFN under third party management to ensure that AANDC programs and services continued to be deliv- ered to people of TFN. Applica- tion dismissed. AANDC made significant efforts to find alter- native solution and to come to agreement with TFN for fund- ing its programs and services. While court agreed that TFN did not lack ability to manage its own finances, it was lack of ARFA that was determinative. Given circumstances, decision to appoint third party manage- ment to ensure delivery of es- sential social programs was rea- sonable and fell within range of possible, acceptable outcomes. TFN chose not to participate in review of process by which AANDC addressed concerns of First Nations of Saskatchewan with respect to ARFA for 2014- 2015 fiscal year. TFN could not now rely on fact that it was not consulted in meaningful and serious manner. Minister nei- ther failed to observe principles of natural justice nor his duty to consult and accommodate. Thunderchild First Nation v. Canada (Minister of Indian Af- fairs and Northern Development) (Feb. 18, 2015, F.C., George R. Locke J., File No. T-791-14) 250 A.C.W.S. (3d) 181. Air Law AIRPORTS Refusal to give security clear- ance upheld on judicial review In December 2012, applicant began working at Lester B. Pearson International Airport in part-time position with Serv- isair. He began working for Air Canada in part-time position in March 2013, and was work- ing full-time by April 2013. On January 15, 2013, he applied for transportation security clear- ance required to work airport. Officials at Transportation Security Clearance Program requested Law Enforcement Records Check from RCMP. RCMP reported that applicant had been charged with weap- ons offences and drug offences in 2007, but that charges had been withdrawn. RCMP also reported that known associates of applicant all had previous criminal convictions relating to violence, drugs, or weap- ons. Applicant's application was referred to Transportation Security Clearance Advisory Board. Advisory Board made recommendation that Minister refuse clearance based on con- clusion that applicant may be prone or induced to commit act or assist or abet another person to commit act that may unlaw- fully interfere with civil avia- tion. Applicant sought judicial review of decision. Applica- tion dismissed. While it may seem harsh to applicant who had conducted himself appro- priately since his involvement or association with criminal elements ending in 2007, Min- ister was entitled to rely upon those events given Ministerial discretion to refuse to give se- curity clearances based on low threshold of whether person may be prone or induced to unlawfully interfere with civil aviation. Court could not sub- stitute its opinion for persons who were experienced in those matters. Decision fell within range of reasonable acceptable outcomes based on evidentiary record that was before Advisory Board and Ministerial delegate and was justified by transpar- ent and intelligible reasons. Christie v. Canada (Attorney General) (Feb. 19, 2015, F.C., Pe- ter Annis J., File No. T-1285-14) 250 A.C.W.S. (3d) 185. Civil Procedure STANDING Applicant lacked standing to challenge Strengthening of Canadian Citizenship Act Respondent decided to grant royal assent to bill Strengthen- ing of Canadian Citizenship Act. Bill had provision to re- voke citizenship of naturalized Canadians and remove them from Canada. Applicant sought order that decision was beyond respondent's constitutional au- thority in that bill was beyond authority of Federal Parliament. Applicant sought to quash sec- tions of Strengthening of Ca- nadian Citizenship Act because they violated rights under Ca- nadian Charter of Rights and Freedoms, and International Covenant on Human and Po- litical Rights. Applicant sought to quash all portions of Crimi- nal Procedure Rules and any other rule that stated leave was required to appeal. Applicant sought stay of implementation of bill. Respondent brought motion to dismiss application. Motion granted. Application was dismissed. Applicant had no standing. Applicant failed to provide any evidence that he had private interest that would support his standing. Applicant had no public interest stand- ing to bring application. Ap- plicant provided no evidence as to genuine interest in matter and application did not provide reasonable and effective way to bring issues before court. Char- ter challenge was dismissed for lack of evidence. Jayaraj v. Canada (Governor General) (Feb. 19, 2015, F.C., Roger T. Hughes J., File No. T-1596-14) 250 A.C.W.S. (3d) 236. Immigration PERSON IN NEED OF PROTECTION Board erred in concluding that applicant's failure to claim asylum in United States on earlier trip evinced lack of subjective fear Applicant, aged 24, was citizen of Ukraine. He sought protec- tion as refugee on ground of his sexual orientation. Appli- cant said that he was "outed" as homosexual in university by classmate. He was targeted by classmate and classmate's friends. He was confronted or attacked by classmates on three occasions. Applicant claimed he was given no assistance by dean of university or by police. Appli- cant came to Canada on student visa and made claim for refugee protection shortly after his ar- rival. Refugee Protection Divi- sion of Immigration and Refu- gee Board found applicant was not credible. Board ruled that it was not persuaded, on balance of probabilities, that applicant was in fact homosexual. As ap- plicant did not allege any other ground of persecution, board determined that he was neither convention refugee nor person in need of protection. Appli- cant applied for judicial review of board's decision. Applica- tion granted. Board erred in concluding that applicant's fail- ure to claim asylum in United States on earlier trip in summer of 2010 evinced lack of subjec- tive fear. Applicant's explana- tion that he had not yet been attacked in Ukraine and did not fear for his life was plausible. Board erred in drawing adverse inference from lack of sufficient corroborating evidence of appli- cant's sexual orientation. Board ignored several photographs, affidavits, and letters from ap- plicant's mother and former Canadian boyfriend. It was not open to board to make negative finding of credibility based on applicant's failure to produce his former Canadian boyfriend as witness. Matter was remitted to differently constituted panel for redetermination. Nezhalskyi v. Canada (Minis- ter of Citizenship and Immigra- tion) (Mar. 9, 2015, F.C., Simon Fothergill J., File No. IMM- 7468-13) 250 A.C.W.S. (3d) 303. GOODS AND SERVICES TAX Agency's decision to enforce terms of Excise Act (Can.) upheld on judicial review Taxpayer commenced judicial review after Canada Revenue Agency (CRA) activated previ- ously closed GST number in order to raise GST assessment against him, however, account was closed on May 26, 2010. and CRA was granted mo- tion dismissing application in July 2010. In March 2011, GST account was reopened and taxpayer filed application for judicial review, but with- drew it. In May 2011, taxpayer was employed and CRA issued Requirement to Pay ("RTP") to employer and after nego- tiations, RTP was reduced pro- vided taxpayer make certain disclosures, which he failed to do. In January 2012, taxpayer notified CRA that he was look- ing for employment and was re- ceiving employment insurance ("EI"). In June 2012, CRA is- sued Requests for Information ("RFI") to taxpayer's banks, and it was determined that taxpayer was earning income on month- ly basis above EI and failed to notify CRA. In August 2012, CRA and taxpayer reached agreement with respect to GST debt. CRA agreed to postpone collection action until such time that current criminal proceedings were concluded on condition taxpayer provide full and frank disclosure of in- come and assets. In September 2013, taxpayer swore affidavit that he was not employee, but was working in non-commer- cial activity with no intent to profit. CRA obtained bank statements that he channeled funds through company P to his personal accounts. On May 5, 2014, CRA sent P RFI pur- suant to s. 289(1) of Excise Act (Can.), and made decision to administer and enforce terms of Act upon taxpayer for GST liability of $33,497.31 plus pen- alties and interest since tax- payer was not GST registrant or had not made application for registration. Taxpayer applied for judicial review on grounds that CRA's decision caused harm and injury to him. Ap- plication dismissed. There was not continuous course of con- duct. Even though same GST debt was owed by him, actions taken by CRA were separate and distinct. P action was rea- sonable one; it did not breach terms of agreement and was not collection action, but in- vestigative action. CRA was entitled to reasonably investi- gate whether taxpayer provided full and frank disclosure of his assets and income. Court had no jurisdiction to address is- sues taxpayer raised concern- ing involuntary assigning of GST number or taking of his property without due process. Constitutional question raised did not require to be answered since application as it related to P was dismissed on merits and court had no jurisdiction over remaining issues. McCartie v. Canada Revenue Agency (Feb. 23, 2015, F.C., Rus- sel W. Zinn J., File No. T-1206- 14) 250 A.C.W.S. (3d) 351. SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Preventing school from teaching Catholicism from own perspective seriously interferes with religious freedom Private Catholic high school, has, as part of mandatory core curriculum, required program on Ethics and Religious Culture (ERC). ERC, with stated objec- tives of "recognition of others" and "pursuit of the common good," teaches beliefs and ethics of different world religions from neutral, objective perspective. Minister of Education, Recre- ation and Sports may, pursuant to s. 22 of regulation respect- ing the application of the act respecting private education (Que.), grant exemption from ERC program if proposed al- ternative program deemed to be "equivalent." School requested exemption, proposing alterna- tive course be taught from per- spective of Catholic beliefs and ethics. Minister denied request. School application for judicial review of minister's decision granted. Superior Court held that minister's refusal infringed school's right to religious free- dom. Quebec Court of Appeal allowed Quebec's appeal, find- ing minister's decision reason- able. School appealed, modify- ing its proposal by agreeing to teach doctrines and practices of other world religions neu- trally but teaching about ethics of other religions from Catholic perspective. Minister's position, that no part of program could be taught from Catholic perspec- tive, remained same. Appeal allowed. Case required balanc- ing between robust protection for values underlying religious freedom with values of secular state. Requiring school to speak about its own religion in terms defined by state rather than own understanding demonstrably interferes with manner in which community can teach and learn about Catholic faith and under- mines liberty of those who have chosen to give effect to collective dimension of religious beliefs by participating in denomina- tional school. Preventing school from teaching and discussing Catholicism from own perspec- tive does little to further ERC program's objectives, but seri- ously interferes with religious freedom. Engagement with in- dividual's own religion on own terms cannot be presumed to impair respect for others. It is not breach of religious freedom to require school to teach about ethics of other religions from neutral perspective. Program CASELAW

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