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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Trial CHARGE TO JURY Focus was on whether Vetrovec warning achieved its purpose Accused appealed judgment upholding convictions for con- spiracy to commit murder and first degree murder. Trial judge gave caution respecting evidence of accomplices who testified for Crown. Appeal dismissed. Per Fish J. (majority): Trial judge's Vetrovec warning sufficient. There was no particular formula for caution. Focus was on wheth- er warning achieved its purpose. Trial judge highlighted status of witnesses as accomplices and criminals, immunity agreements and benefits received for co-oper- ation. Jury was alerted to dan- gers of accepting testimony with- out confirmatory evidence. Per Deschamps J. (minority): Juries need not be instructed to look for "independent" and "material" evidence corroborating unsavoury witness's testimony. Trial judge's warning sufficient and consistent with credibility-based approach. R. v. Smith (Jan. 22, 2009, S.C.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31980; 32323) Appeal from 72 W.C.B. (2d) 703 dismissed. Order No. 009/026/064 (19 pp.). FEDERAL COURT OF APPEAL Taxation INCOME TAX Fact that loss of charitable registration status would lead to fewer donations was insufficient to establish irreparable harm Application by charity for order extending period of time before Minister of National Revenue permitted to proceed with revo- cation of charitable registration. To succeed, applicant must establish: (1) there is a serious issue to be tried; (2) it will suf- fer irreparable harm if order not granted and; (3) balance of con- venience favours granting order. Application dismissed. Applicant did not establish that it would suffer irreparable harm if order refused. Applicant's assertion that loss of registered status would lead to fewer donations because income tax receipts could not be issued was accepted as fact, but not itself sufficient to estab- lish irreparable harm. Decreased receipts would result in smaller distributions to charities sup- ported by applicant, but that was not compelling evidence of irreparable harm to applicant. Applicant provided no evidence of its current financial position, assets, or obligations to support ongoing charitable programs. Court therefore unable to con- clude that refusal to provide order would have any other effect than decreased amount of fund distributions. Choson Kallah Fund of Toronto v. M.N.R. (Oct. 17, 2008, F.C.A., Ryer J.A., File No. A-38- 08) Order No. 008/338/094 (7 pp.). FEDERAL COURT Citizenship QUALIFICATIONS Flaws in decision dismissing citizenship application justified re-determination Appeal by Jordanian national and permanent Canadian resi- dent from decision of citizenship judge denying third application for citizenship. Decision denied citizenship on basis that appellant did not satisfy residency require- ments and due to lack of credibil- ity. Appeal allowed. There were a number of flaws in decision under appeal: (1) unclear which of three different residency tests, or some blend of those, was used by judge; (2) court rejected appellant's evi- dence that had been absent for 121 days in preceding four years, finding instead that absences totalled 438 days, but judge pro- vided no analysis of evidence or basis for negative credibility find- ing and; (3) in reaching finding that appellant had been absent 438 days, judge clearly consid- ered material not filed by appel- lant, and no opportunity given to appellant to explain or respond to alleged additional absences, which was a denial of procedural fair- ness. Appellant's application for citizenship referred back for re- determination by different citi- zenship judge. Muhanna v. Canada (Minister of Citizenship and Immigration) (Nov. 18, 2008, F.C., Zinn J., File No. T-545-08) Order No. 008/338/095 (9 pp.). Immigration REFUGEE STATUS Board's determination that applicant had internal flight alternative was reasonable March 9, 2009 • Law TiMes COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 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. Application for judicial review of decision by Immigration and Refugee Board that applicant neither Convention refugee nor person in need of protection. Applicant a self-employed con- tractor who, while auditing chain of pawn shops in Mexico, came across money laundering activi- ties. Applicant feared retaliation by money launderers in Mexico. At first instance, board found that applicant's fear not linked to any Convention ground, and that he could have resided with- out fear of persecution in Mexico City or Guadalajara, where chain of pawn shops did not operate, i.e. that an internal flight alter- native ("IFA") existed. Judicial review application dismissed. Refugee claim applicants must show: (1) that they have suffered or will suffer persecution and; (2) that persecution linked to a Convention ground. Applicant's fear of money launderers did not relate to any Convention ground for refugee status. Regarding availability of an IFA, applicants are required to show that they have exhausted all reasonable avenues available and that none are forthcoming. Applicant had not met that burden. Board's determination that applicant had IFA reasonable. Judicial review application dismissed. Castro v. Canada (Minister of Citizenship and Immigration) (Nov. 17, 2008, F.C., Beaudry J., File No. IMM-2113-08) Order No. 008/338/099 (15 pp.). REFUGEE STATUS Submission that HIV-positive applicant would experience persecution was not sufficiently addressed by Board Applicant was denied refugee status. Applicant was HIV posi- tive. Board found applicant had adequate state protection avail- able and had viable internal flight alternative. Application for judi- cial review was allowed. Board did not address negative stigmas towards HIV positive people affect delivery of treatment and medications. Board did not ade- quately address whether appli- cant proved systemic barriers associated with HIV testing and employment amounted to per- secution. Applicant's submission applicant would experience per- secution as HIV positive with- out meaningful family support, with potential for systemic bar- riers to employment and poten- tial for discrimination in health care delivery was not sufficiently addressed by board. Diaz v. Canada (Minister of Citizenship and Immigration) (Nov. 6, 2008, F.C., O'Keefe J., File No. IMM-4652-07) Order No. 008/329/067 (22 pp.). www.lawtimesnews.com SELECTION AND ADMISSION Definitions of "relative" and "family member" excluded sisters-in-law Application for judicial review by Minister of decision of Immigration Appeal Division. Board had found respondent, Canadian citizen, eligible to sponsor wife. Respondent had been convicted in India of non- culpable homicide, having caused his sister-in-law's death by dous- ing her in kerosene and setting her afire. Following prison term, respondent returned to Canada and filed sponsorship application for new wife. Respondent suc- cessfully appealed initial denial of right to sponsor. Appeal divi- sion found that that s. 133(1)(e) (ii) of Immigration and Refugee Protection Regulations (Can.), prohibited Canadians citizen from acting as sponsor only when they have committed offences involving bodily harm against certain enumerated victims, and that sisters-in-law not included in that list. Sponsorship there- fore permitted notwithstanding conviction for violent act against woman. Minister's judicial review application dismissed by Federal Court. Use of word "including" in introducing class of relation- ships in statutory provisions such as s. 133(1)(e)(ii) often implies succeeding list is non-exhaustive, but proper interpretation of s. 133(1)(e)(ii) requires consid- eration of definition "relative" and "family member" at s. 2 of Regulations. The statutory defini- tion of those terms is restricted by use of word "means". Definitions of "relative" and "family mem- ber" specifically exclude sisters- in-law. Had legislator intended definition of "family member" to include all relationships linked to concept of family, it would explicitly have done so. Court determined that board had not erred in interpreting s. 133(1) (e)(ii)(A) of Regulations. Judicial review application dismissed. Canada (Minister of Citizenship and Immigration) v. Brar (Nov. 18, 2008, F.C., Beaudry J., File No. IMM-289-08) Order No. 008/338/096 (16 pp.). Intellectual Property Industrial And TRADE-MARKS Costs determined in unsuccessful infringement application Trade-mark holder unsuccess- fully brought application against competitor for various types of relief for trade-mark infringe- ment. Competitor was award- ed $4,584.24 plus GST for total of $4,813.45. Costs were determined in accordance with Column III of table to Tariff B of Federal Court Rules, 1998 (Can.), as application judge did not specify otherwise. Fact that trade-mark holder failed to estab- lish essential element of claim did not mean claim was frivolous or vexatious, and no such find- ing had been made. Conversely, application judge had not cited competitor's conduct as basis for reducing costs. Application judge did not provide direction for travel fees of counsel so they could not be allowed. Pharmacommunications Holdings Inc. v. Avencia International Inc. (Nov. 10, 2008, F.C., Assessment Officer Parent, File No. T-2278- 06) Order No. 008/338/068 (6 pp.). ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW Application dismissed for unexplained delay Grievance Settlement Board decisions on discharge grievance issued April 11th and 24, 2007. Applicant's union's motion for judicial review served December 2007, seven and one-half months later. Judicial review application not perfected within 30 days of receipt of application record as required under Judicial Review Procedure Act (Ont.), and not until 107 days had passed, without explanation for delay. Respondent employer sought dismissal of application based on delay. Application dismissed due to unexplained delay. Delay pre- sumed to perpetuate a fostering dysfunction in labour relations and to have prejudiced respon- dent employer. O.P.S.E.U. v. Ontario (Ministry of Labour) (Nov. 14, 2008, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Carnwath and Bellamy JJ., File No. 600/07) Order No. 008/323/307 (4 pp.). Appeal INTERVENTION Permitting proposed intervention would change focus, scope, and nature of proceedings Motion by proposed intervener for leave to intervene in appeal. Individual alleged police service was violating his constitutional rights by maintaining records about him. Individual brought application for order requiring police service to expunge records and to refrain from dissemi- nating information in records. Application judge granted

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