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law Times • July 11, 2011 protection was reasonable. Ferencova v. Canada (Minister of Citizenship and Immigration) (Apr. 8, 2011, F.C., Mosley J., File No. IMM-3940-10) 200 A.C.W.S. (3d) 1141 (13 pp.). INADMISSIBLE AND REMOVABLE CLASSES Fact Canadian police did not proceed with charge did not lessen grounds for believe offence committed Application by refugee for judi- cial review of decision denying his application for permanent residence. Refugee was citizen of Nigeria who was granted Convention Refugee status in Canada. Refugee applied for permanent residence in 2004 and his application was ap- proved in principle in January 2005. Six days later, refugee was stopped at Canadian airport al- legedly escorting undocumented person from Bahamas. Refugee was charged with offence but charge was later dropped. In September 2006, refugee was stopped at airport in Ghana ac- companying someone travelling under false identity. Refugee was not charged in Ghana. Upon arriving at Canadian airport, refugee was found to be carry- ing false identity documents but was again not charged. Im- migration officer ultimately denied refugee's application for permanent residence based on refugee's conduct in Ghana. Application dismissed. Six-year delay in processing application for permanent residence was not unreasonable in this case. Ap- plication had been approved in principle within eight months. Delay after that time arose from charge against refugee in 2005 and incident in Ghana in 2006. Refugee was not automatically entitled to admissibility hearing. Refugee had been given oppor- tunity to make submissions and that was sufficient in this case. Refugee failed to establish rea- sonable apprehension of bias on part of immigration officer. Im- migration officer was entitled to consider incident in Ghana even though no charges were laid. Standard of proof under s. 36(1) (c) of Immigration and Refugee Protection Act (Can.), was rea- sonable grounds to believe of- fence had been committed. Im- migration officer properly con- sidered available evidence and reasonably concluded she had reasonable grounds to believe refugee had committed offence. Fact that Canadian police did not proceed with charge because evidence was in Ghana did not lessen grounds for believing of- fence had been committed. Bankole v. Canada (Minister of Citizenship and Immigration) (Mar. 25, 2011, F.C., O'Keefe J., File No. IMM-1244-10) 200 A.C.W.S. (3d) 1121 (26 pp.). REFUGEE STATUS Board's findings were not perverse or capricious Applicant was denied refugee status. Decision was predicated on lack of credibility. Applica- tion for judicial review was dis- missed. Board's findings were not perverse or capricious. Findings were open to board on evidence. Analysis of applicant's testimony was not microscopic or focused on matters that were collateral to core factual elements of claim. Board was entitled to conclude applicant's diagnosis was not reason behind inconsistencies in applicant's testimony. It was open to board to conclude ap- plicant was not married and that other aspects of claim lacked credibility. Ma v. Canada (Minister of Cit- izenship and Immigration) (Apr. 5, 2011, F.C., Rennie J., File No. IMM-4585-10) 200 A.C.W.S. (3d) 1133 (19 pp.). SELECTION AND ADMISSION Officer properly considered impact on child should applicant be returned to India Application for judicial review of decision by officer refusing appli- cant's application for permanent residency from within Canada on humanitarian and compas- sionate grounds. Applicant was citizen of India. Applicant had son living in Canada who was Canadian citizen. Applicant's application for permanent resi- dence as member of family class was refused. Applicant's subse- quent application for refugee protection was denied. Since ar- riving in Canada, applicant lived with her son and his family, and was helping to raise her grand- child. Application dismissed. Officer properly considered im- pact on child should applicant be returned to India. Officer's consideration with respect to availability of assistance to appli- cant in India was reasonable. Soma v. Canada (Minister of Citizenship and Immigration) (Apr. 18, 2011, F.C., Boivin J., File No. IMM-4170-10) 200 A.C.W.S. (3d) 1154 (12 pp.). Officer failed to consider whether there were special circumstances applicable Applicant was refused applica- tion for permanent residence as member of federal skilled worker class. Applicant was awarded 15 points for educational creden- tials. Applicant argued applicant should have been awarded 20 points. In addition to 13 years of other education applicant had three-year apprenticeship. Application for judicial review was allowed. Officer considered substituted evaluation but found it was not warranted and further analysis beyond statement pro- vided was not necessary given facts. Officer was not wilfully blind to fact applicant served apprenticeship. Applicant did not met both requirements of s. 78(2)(d)(i) of Immigration and Refugee Protection Regula- tions (Can.). Section 78(4) was to be read as potential exception to years of study requirement in s. 78(2) where on discretion- ary basis officer determined that special circumstances exist. Officer failed to properly apply s. 78(4) because officer failed to consider whether there were special circumstances applicable to applicant that would warrant awarding applicant full points despite lacking one year of study. Fact that Scotland's secondary education is one year shorter CASELAW than in most of Canada could be special circumstance. Officer fet- tered discretion because officer did have ability to consider new evidence. Marr v. Canada (Minister of Cit- izenship and Immigration) (Mar. 28, 2011, F.C., Zinn J., File No. IMM-4501-10) 200 A.C.W.S. (3d) 1157 (27 pp.). Taxation INCOME TAX Applicant did not make out special circumstances H&R Block completed ap- pellant's tax return. Applicant signed return but did not look it over. Applicant received refund. Applicant was reassessed. Ap- plicant failed to include income. Applicant received overpayment which applicant promptly re- paid. Penalties and interest were imposed on applicant. Applicant request under fairness provi- sions to waive or cancel penalty or interest was refused because it was applicant's responsibility to ensure accuracy of returns even if it were completed by profes- sional tax preparer. Application for judicial review was dismissed. Committee did not overlook rel- evant facts. Applicant did not make out special circumstances. Decision was reasonable. Spence v. Canada Revenue Agency (Apr. 6, 2011, F.C., O'Reilly J., File No. T-570-10) 200 A.C.W.S. (3d) 1221 (11 pp.). FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Interveners granted broader participatory rights in judicial review proceedings Appellants mainly contested limitations imposed by motions judge on their participation in proceedings as interveners. More particularly, they objected to lim- it of one expert witness per inter- vener and exclusion of rights to cross-examine witnesses and to appeal final decision. Interveners were granted broader participa- tory rights in judicial review pro- ceedings. Interveners were grant- ed permission to call two expert witnesses and were granted right to cross-examine deponents for applicant and respondent. Sandy Pond Alliance to Protect Canadian Waters Inc. v. Can- ada (Attorney General) (Apr. 8, 2011, F.C.A., Evans, Dawson and Trudel JJ.A., File No. A-93- 11; A-81-11) Decision at 199 A.C.W.S. (3d) 9 was reversed in part. 200 A.C.W.S. (3d) 917 (18 pp.). Appeal INTERVENTION Proposed interveners had direct interest in outcome of proceedings Respondent sought patent for in- vention. Commissioner rejected claims. Appeal was allowed. Appellants appealed. Proposed interveners sought leave to inter- www.lawtimesnews.com vene in appeal. Proposed inter- veners sought leave to file writ- ten submissions and to partici- pate in oral argument. Proposed interveners did not seek leave to file evidence. Proposed interven- ers were representative bodies with public mandates whose members represented important stakeholders in financial services industry. Motion for leave was granted. Proposed interveners had direct interest in outcome of proceedings. Proposed interven- ers' contribution to debate could assist members of panel hearing appeal. Suggested scope of inter- vention was adopted. Canada (Attorney General) v. Amazon.Com, Inc. (Apr. 8, 2011, F.C.A., Trudel J.A., File No. A-435-10) 200 A.C.W.S. (3d) 920 (8 pp.). Civil Procedure DISCOVERY Judge correctly considered applicant's requests to amount to fishing expedition Appeal by applicant from inter- locutory order of Tax Court of Canada dismissing appli- cant's motion for order requir- ing Crown to provide specified disclosure. Applicant sought from Crown list of First Na- tions manufacturers of tobacco located on reserves and sought refused answer to question re- garding whether any of First Na- tion licensees were incorporated entities. Appeal dismissed. Judge did not err in finding requested list and answer to be irrelevant. Judge correctly considered ap- plicant's requests to amount to fishing expedition. Grand River Enterprises Six Na- tions Ltd. v. Canada (Mar. 31, 2011, F.C.A., Dawson, Lay- den-Stevenson and Mainville JJ.A., File No. A-334-10) 200 A.C.W.S. (3d) 965 (13 pp.). Taxation INCOME TAX Trial judge never ruled on appellant's objection as to admissibility Appeal from decision of Tax Court Judge. Appellant raised preliminary objections at start of trial, one of which involved document which he said had been illegally seized from his lawyer's files. Trial judge cor- rectly observed that appropriate time for making objection was point at which Crown sought to introduce document in evi- dence. However, when Crown tendered document, trial judge allowed Crown to cross-examine appellant on document with- out first disposing of issue of admissibility. Appeal allowed. Appellant did not get fair trial and new trial must be ordered. It was not unusual for judges to defer questions of admissibility so as to preserve flow of trial. But where objection to admis- sibility of document was that it was illegally seized from custody of solicitor, court has obligation to ensure that illegally obtained evidence, in breach of solicitor client privilege, was not ten- dered to detriment of taxpayer. In this case judge relied on this document to draw one of many PAGE 17 inferences which were adverse to appellant's credibility. In the end trial judge never did rule on ap- pellant's objection as to admis- sibility. While appeal court did not purport to rule on legality of seizure, it was important issue which ought to have been dealt with. Brace v. Canada (Apr. 11, 2011, F.C.A., Noel, Pelletier and Tru- del JJ.A., File No. A-137-08) 200 A.C.W.S. (3d) 1218 (7 pp.). ONTARIO CIVIL CASES Administrative Law JURISDICTION Jurisdiction rested exclusively with board and not court Plaintiff pleaded defendant TCC negligently constructed project. Plaintiff pleaded that defendant city was liable in public abuse of authority and gross negligence. Plaintiff pleaded city unlawfully adopted internal policy of block- busting to intentionally cause harm to affected business along street. Defendants brought mo- tion to dismiss action on grounds board had exclusive jurisdiction over claim. Action was dismissed. Dismissal was not to become ef- fective for 60 days. Action was dismissed. Claim was for injuri- ous affection. Jurisdiction rested exclusively with board and not court. Claims for negligence and gross negligence were being used to disguise claim for compensa- tion that was within jurisdiction of board. Curactive Organic Skin Care Ltd. v. Ontario (Apr. 6, 2011, Ont. S.C.J., Perell J., File No. 10-CV- 399717-00CP) 200 A.C.W.S. (3d) 915 (9 pp.). Bankruptcy And Insolvency PROPERTY Limitation period could run only from default under lease Respondent sued appellant for arrears owing on equipment lease more than two years after appel- lant's co-lessee defaulted on lease by going bankrupt, and after both lessees then failed to make next payment. Motion judge erred in holding lease signed by two co-lessees amounted, in ef- fect, to two separate leases and that two-year limitation period had not run against appellant on his lease. There was nothing in lease document that suggested that it was intended to operate as two separate leases, one with each lessee, nor would that be commercially reasonable result. Terms of oral arrangement be- tween respondent and appellant were wholly consistent with ac- ceptance of termination of ori- ginal lease by both remaining parties. As arrangement between respondent and appellant fol- lowing bankruptcy of co-lessee constituted new agreement to deal with equipment following default under lease, and as ac- tion by respondent was action for payment under lease, limita- tion period could run only from default under lease, and expired before action was commenced.