Law Times

PAGE 16 CaseLawLaw FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Election Appeal Committee erred in interpretation of what constituted corrupt practice Application for judicial review of decision of First Nation's Election Appeal Committee dis- missing applicants' appeal from band council election results. Ap- plicants were four unsuccessful candidates in First Nation's band council election. Three success- ful candidates were incumbent councillors who had all been re-elected. Applicants appealed to committee alleging corrupt practice on part of successful candidates. Applicants alleged successful candidates had made housing and funding decisions prior to election in manner tan- tamount to buying votes. Appli- cation granted; matter remitted for re-determination. Committee erred in law in its interpretation of what constituted corrupt prac- tice. At least one core concept of corrupt practice was any attempt to prevent, fetter, or influence free exercise of voter's right to choose for whom to vote. Com- mittee erred in expecting appli- cants to establish that housing and funding decisions had in fact influenced voters. Expecting voter to testify that his or her vote was bought was excessive burden. Further, prior authorities indicat- ed corrupt practice could be in- ferred. Committee was required to consider timing of conduct, cumulative effect of conduct, and intention behind conduct. Wilson v. Ross (Oct. 16, 2008, F.C., Dawson J., File No. T-1054- 07) Order No. 008/315/101 (18 pp.). Administrative Law JUDICIAL REVIEW Subcontractors did not have standing to challenge validity of tender process Application by subcontractors for judicial review of decision award- ing maintenance contract to con- tractor C Inc.. Contractors B Inc. and C Inc. submitted bids to fed- eral government for submarine maintenance contract. C Inc. had been formed by D Ltd. and W Inc., latter of which had as- sisted federal government in pre- paring proposal. B Inc. intended to use services of subcontractors if its bid was successful. Federal government found C Inc.'s bid to be better and ultimately en- tered into contract with C Inc.. Subcontractors alleged C Inc. should have been disqualified due to conflict of interest. Appli- cation dismissed. Subcontractors did not have standing to chal- lenge validity of tender process. Subcontractors were not directly affected by decision since B Inc. had lost contract at issue. Sub- contractors were not involved in joint venture with B Inc.. B Inc. had not submitted bid as agent for subcontractors. Subcontrac- tors would not have had standing in tort claim. Subcontractors did not claim public interest stand- ing. Standing was not granted as matter of discretion since sub- contractors had chosen not to ar- range their affairs in manner that would have made them parties to bid. In any event, no reasonable apprehension of conflict of inter- est arose as C Inc. would not have been able to use W Inc.'s insider knowledge to its advantage. Irving Shipbuilding Inc. v. Can- ada (Attorney General) (Oct. 28, 2008, F.C., Harrington J., File No. T-277-07) Order No. 008/315/095 (28 pp.). Immigration EXCLUSION AND EXPULSION Re-weighing evidence was beyond scope of judicial review Tribunal confirmed deporta- tion order. Application for stay of removal on humanitarian and compassionate grounds was re- fused. Applicant's counsel spoke Punjabi and when counsel ob- jected to interpretation corrective measures were taken. Application for judicial review was dismissed. Tribunal made no reviewable er- rors. Tribunal considered best interests of applicant's child. Tri- bunal was entitled to consider jurisprudence tendered and to reach own conclusions. It was too march 2, 2009 • Law Times COURT DECISIONS CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. late for applicant to argue con- sent order for access barred ap- plicant's removal. Applicant did not raise consent order at admis- sibility hearing or at appeal of re- moval order. Applicant was taken to have waived right to object to quality of interpretation. Re- weighing evidence was beyond scope of judicial review. Bal v. Canada (Minister of Citi- zenship and Immigration) (Oct. 17, 2008, F.C., de Montigny J., File No. IMM-1472-08) Order No. 008/315/085 (18 pp.). INADMISSIBLE AND REMOVABLE CLASSES Failure to consider responding submissions constituted reviewable error Application for judicial review of decision refusing Ministe- rial relief. Applicant was born in Palestine but was raised in and was citizen of Jordan. Applicant became involved in Fatah faction of Palestine Liberation Organi- zation ("PLO"). Applicant fled to Kuwait following conflict be- tween PLO and Jordan in 1970 but returned to Jordan in 1980. Applicant criticized Jordanian regime and was consequently arrested in 1989 and tortured for six months. Applicant fled to Libya, returned to Jordan in 1994, and then came to Canada via United States. Applicant suc- cessfully applied for refugee sta- tus but was subsequently found to be inadmissible to Canada due to his ties with Fatah faction of PLO. Minister of Public Safety and Emergency Preparedness refused Ministerial relief. Certi- fied record did not include ap- plicant's response to recommen- dation of President of Canada Border Services Agency. Appli- cation granted; matter remitted for redetermination. Failure to consider responding submissions constituted reviewable error. Cer- tified record was best evidence of what was before Minister so there was every reason to conclude ap- plicant's responding submissions were not before Minister. Ap- plicant's responding submissions challenged many statements that formed basis of recommenda- tion. Nothing indicated recom- mendation was amended in any way to reflect consideration of applicant's responding submis- sions. Ramadan v. Canada (Minister of Citizenship and Immigration) (Oct. 14, 2008, F.C., Zinn J., File No. IMM-950-08) Order No. 008/315/123 (19 pp.). REFUGEE STATUS Officer justified in conclusion that applicant did not establish homosexuality Applicant came to Canada at age 12 in 1975. Applicant had three children. Applicant was convict- ed of criminal offences. Appli- cant claimed she was lesbian and feared persecution in country of origin. Only evidence was affir- mation of unsworn and unsup- ported declaration of applicant as to applicant's sexual orientation. Applicant was denied refugee sta- tus. Officer concluded applicant did not provide sufficient evi- dence applicant was homosexual. Application for judicial review was dismissed. Officer was cor- rect in not holding oral hearing. Officer was correct in consider- ing there was no evidence of ap- plicant being lesbian beyond bal- ance of probabilities. Officer did not ignore evidence. Parchment v. Canada (Minister of Citizenship and Immigration) (Oct. 8, 2008, F.C., Frenette D.J., File No. IMM-1350-08) Order No. 008/315/142 (12 pp.). Board unreasonably concluded applicant was not Falun Gong practitioner Application for judicial review of decision that refugee claimant was neither Convention Refugee nor person in need of protection. Refugee claimant was citizen of China who was Falun Gong practitioner. Refugee claimant learned two fellow practitioners had been arrested and that she was being sought by authorities. Refugee claimant arranged to be smuggled to Canada where she unsuccessfully applied for refugee status. Application granted; mat- ter remitted for re-determination. Board unreasonably concluded refugee claimant was not Falun Gong practitioner simply because she was able to leave China with- out incident. Board never anal- ysed evidence relating to refugee claimant's Falun Gong activities in China or Canada. Such analy- sis was necessary on central issue of claim. Wang v. Canada (Minister of Citi- zenship and Immigration) (Oct. 10, 2008, F.C., Martineau J., File No. IMM-1459-08) Order No. 008/315/126 (7 pp.). Officer did not ignore relevant evidence of risk Application for judicial review of negative decision of Pre-Removal Risk Assessment ("PRRA") Offi- cer. Refugee claimant was citizen of Somalia who unsuccessfully applied for refugee status in Can- ada. Refugee claimant had alleged well-founded fear of persecution based on his clan membership and political opinion. Immigra- tion and Refugee Board found refugee claimant was not credible and that evidence did not indi- cate his clan was subject to perse- cution. Refugee claimant applied for PRRA almost ten years later but did not submit additional evidence. Application dismissed. PRRA Officer had not ignored or arbitrarily discarded highly relevant evidence of risk. Burden of proof was on refugee claim- ant who simply did not establish he would face danger or risks if returned to Somalia. PRRA Of- ficer's decision was based on up- dated documentary evidence and was reasonable. Mahdi v. Canada (Minister of Cit- izenship and Immigration) (Oct. 14, 2008, F.C., Martineau J., File No. IMM-1610-08) Order No. 008/315/122 (7 pp.). Officer erred in rejecting police summons issued against applicant in Myanmar Application for judicial review of negative decision of Pre-Removal Risk Assessment ("PRRA") Of- ficer. Applicant was citizen of Myanmar who came to Canada and unsuccessfully applied for refugee status. Applicant request- ed PRRA and submitted police summons that had been issued against applicant in Myanmar. Applicant also provided evidence indicating he had been partici- pating in anti-Myanmar rallies in Canada. PRRA Officer made negative determination on ba- sis that summons was not new StewartMck_LT_Mar2_09.indd 1 www.lawtimesnews.com 2/24/09 11:18:24 AM

• Cover
• Ensure Full Disclosure
• Blame The Government
• Focus On Labour and Employment Law