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PAGE 14 CaseLawLaw FEDERAL COURT Courts JURISDICTION To strike application for judicial review would leave applicant without remedy Minister reassessed applicant. Ap- plicant argued reassessments were not sent to correct address and therefore Minister failed to issue valid notices of assessment. With- out valid notices of assessment, applicant could not file notices of objection and could not file ap- peal. Minister advised Minister could not accept notices of objec- tion because they were out of time and would not allow extension of time. Applicant sought judicial review. Respondent sought order striking application on basis mat- ters in dispute dealt with assess- ments which were matters within sole jurisdiction of Tax Court of Canada. Motion was dismissed. Application was allowed to pro- ceed. To strike application would leave applicant without remedy. Applicant did not receive notice of assessment and it was returned to agency. Notice of assessment was not sent to authorized mail- ing address. There was no valid assessment that triggered relief available to applicant and mat- ter fell to be determined by Federal Court. Carter v. Canada (Aug. 26, 2009, F.C., Aalto Prothonotary, File No. T-465-09) Order No. 009/251/046 (12 pp.). Crown ARMED FORCES Handling of detainees by Military Police arose from established military custom or practice and was not policing function or duty Application by federal govern- ment for judicial review of de- cision of Military Police Com- plaints Commission to hold public interest hearing into complaints. Canadian Forces in Afghanistan had discretion as to whether to turn detainees over to Afghan authorities. Public inter- est groups alleged Afghan author- ities routinely tortured detainees. Public interest groups filed com- plaint with Commission alleging Canadian Forces were not taking sufficient steps to ensure detainees transferred to Afghan authorities would not be tortured. Commis- sion decided it had jurisdiction to investigate but it experienced difficulty obtaining documents from certain government depart- ments. Commission decided to hold public interest hearing into complaint. Public interest groups filed second complaint alleging Military Police failed to inves- tigate officers who were aware detainees transferred to Afghan authorities were likely to be tor- tured. Commission decided to hold public interest hearing into second complaint as well. Appli- cation granted. Determining ju- risdictional issue prior to comple- tion of public interest hearing was not premature. Matter had been fully argued, commission did not have greater expertise in statutory interpretation and public inter- est hearing would have been very expensive. Standard of review was correctness since commission was deciding true question of juris- diction. Impugned conduct in first complaint was beyond juris- diction of Commission. Military Police's handling of detainees was not policing function or duty un- der s. 2(1) of Complaints about the Conduct of Members of the Military Police Regulations, P.C. 1999-2065 under National De- fence Act (Can.). Military Po- lice's handling of detainees arose from established military custom or practice within meaning of s. 2(2) of Regulations. Section 2(2) of Regulations specifically stated conduct arising from established military custom or practice was not policing function or duty. With respect to second com- plaint, Commission did not have jurisdiction to inquire into con- duct of military at large. Com- mission could only investigate what members of Military Police knew or had means of knowing. Canada (Attorney General) v. Am- nesty International Canada (Sep. 16, 2009, F.C., Harrington J., File No. T-1685-08) Order No. 009/264/078 (34 pp.). Immigration JUDICIAL REVIEW No costs awarded for unreasonable delay in processing applications Determination of costs following successful application for judicial review and for writ of mandamus in relation to delay in processing family sponsorship application. Application had been submit- ted January 26, 2004 to visa section at High Commission of Canada in Singapore. At hearing counsel advised court that pass- ports and visas had been issued to applicants and parties agreed that application was moot. Issue whether costs should be awarded against respondent for unreason- able delay in processing applica- tions. There had been number of questions about identity of sponsored candidates and their ages which had to be resolved before decision could be made on application. In addition in- formation previously submitted by principal applicant was inac- curate. No costs awarded. Costs November 2, 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 1(800) 565-6967. 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. may be awarded against any party under Rule 22 of Immi- gration and Refugee Protection Rules (Can.), where court, for special reasons, so orders. Spe- cial reasons may be found where there is finding of bad faith on part of Minister or his servants or if one party has unnecessarily or unreasonably prolonged pro- ceedings or acted in manner that may be characterized as unfair, oppressive or improper. Review of computer assisted immigra- tion processing system notes in certified record did not support finding that delays encountered were unreasonable in sense that they were unfair, oppressive or improper. Nor was there any evi- dence of bad faith. Accordingly there were no special reasons to award costs against respondent. Huot v. Canada (Minister of Citi- zenship and Immigration) (Sep. 15, 2009, F.C., Mosley J., File No. IMM-4041-08) Order No. 009/264/079 (5 pp.). PERSON IN NEED OF PROTECTION Applicants failed to exhaust avenues available in United States before claiming refugee status in Canada Application for judicial review of decision of Refugee Protection Division ("RPD") finding appli- cant spouses were not Conven- tion Refugees or persons in need of protection under Immigra- tion and Refugee Protection Act (Can.). Applicants were former citizens of Soviet Union. They became stateless individuals af- ter failing to take steps to obtain Russian citizenship following break-up of Soviet Union. While in United States on business visa applicants applied for permanent residency. No adjustment to sta- tus was made due to administra- tive lapses. Husband was arrest- ed and detained for overstaying visa. Wife feared being arrested. After husband's release on cer- tain conditions applicants came to Canada and filed for refugee protection. RPD determined that applicants were not Convention Refugees as they did not have well-founded fear of persecution in United States. They were also not deemed to be persons in need of protection. Application for ju- dicial review refused. No review- able errors were made. Applicants failed to exhaust domestic avenues available to them in United States as country of former habitual residence before claiming refugee status in Canada. RPD identi- fied mechanisms of state protec- tion still open to applicants. As well immigration laws of United States were not persecutory or applied to applicants in perse- cutory manner. RPD decision was reasonable and justified www.lawtimesnews.com based on law and facts of case. Popov v. Canada (Minister of Citi- zenship and Immigration) (Sep. 10, 2009, F.C., Beaudry J., File No. IMM-841-09) Order No. 009/264/046 (19 pp.). SELECTION AND ADMISSION Officer erred in determination of whether applicant could sponsor members of family class Applicant sought to sponsor seven family members. Applicant sub- mitted updated application indi- cating applicant was in common law relationship. Applicant was refused application to sponsor member of family class. Officer determined applicant's income was less than low income cut- off requirement for sponsorship. Minimum necessary income was modified to include common-law partner in calculation of family size. Officer found common law partner was not eligible to co- sign application because partner could not be added once applica- tion was originally received and partner's income could not be considered towards financial test. Application for judicial review was allowed. Officer erred in de- termination of whether applicant could sponsor members of family class. If common law partner was considered in size of applicant's family, partner's income was also to be included in sponsorship un- dertaking. Inclusive of partner's income, applicant met cut-off at time decision was made. Dokaj v. Canada (Minister of Citi- zenship and Immigration) (Aug. 27, 2009, F.C., Beaudry J., File No. IMM-968-09) Order No. 009/247/136 (22 pp.). TAX COURT OF CANADA Customs And Excise EXCISE TAX Appellant transferred property at correct market value Appellant was involved in con- struction of homes for sale. Some of transactions involved transfers to sole shareholders and direct- ing minds of appellant. Minister assessed on basis transfers did not occur at fair market value. Appeals were allowed. Appel- lant transferred property 160 at correct market value. Appellant was entitled to new housing re- bate ("NHR") as assigned by shareholders. There was no under reporting of GST because under- lying value of property 160 used in appellant's calculation was cor- rect. Appellant never acquired property 3139 and could not dis- pose of it rendering the fair mar- ket value issue moot. Property 3139 was purchased as primary residence. Shareholders were en- titled to NHR and assignment to appellant was made validly. Ap- pellant was entitled to NHR as- signed to appellant by purchaser in respect of property 3135 based on finding appellant was builder. Appellant provided service in re- spect of property 1169 and value of service was appellant's usual management fee. Stan Wire Application Ltd. v. Can- ada (Sep. 9, 2009, T.C.C., Camp- bell J., File No. 2007-3779(IT) G; 2007-4174(GST)I) Order No. 009/260/036 (31 pp.). Taxation INCOME TAX No evidence that debt was uncollectible Appellant loaned money to relat- ed company. Appellant deducted entire loan as write-off for doubt- ful debt. Minister contested write-off. Appeal was dismissed. Appellant was not precluded from being moneylender whether loans were made to related parties or not. Appellant was in business of lending money because making loan was integral part of business. Loan was extraordinary deviat- ing from types of loans appel- lant generally made in course of business. Loan was different from appellant's day-to-day business. Negative inference was drawn that loan was made non-recourse to facilitate earlier write-off. Ap- pellant did not exercise informed judgment in circumstances and failed to meet reasonableness requirement. Debt was not out- standing for long. It was not es- tablished there were changes in circumstances that gave appellant cause to doubt collectibility of debt. There was nothing to es- tablish write-off was reasonable. There was no evidence that debt was uncollectible. Heron Bay Investments Ltd. v. Can- ada (Sep. 8, 2009, T.C.C., Ho- gan J., File No. 2003-4006(IT) G) Order No. 009/260/039 (46 pp.) ONTARIO CIVIL CASES Family Law CHILD WELFARE Court had authority to place child outside jurisdiction Society brought motion for child to be placed in care of Isle of Man Department. Mother sought re- turn of child to mother subject to supervision by society. Father of child resided in England and owned house in Isle of Man for when father visited child. Child was habitually resident in Isle of

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