Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Administrative Law FREEDOM OF INFORMATION Discretion not exercised in reasonable manner Th is was application pursuant to s. 41 of Access to Informa- tion Act (Can.), to review de- cision of Library and Archives Canada (LAC). Applicant was journalist and he sought infor- mation on Canadian politician. LAC refused to disclose por- tions of R.C.M.P.'s dossier on politician based on s. 15 of Act, national security applicant's exemption. Applicant made formal com- plaint to Information Commis- sioner but commissioner found that complaint was not justifi ed. Application granted. Th ere was two-step approach to analysis and review of claimed exemptions under s. 15 of Act. Court reviewing refusals of disclosure under discretionary exemptions were to review: whether documents fell within exemption claimed; and whether discretion was exercised properly. Reasonable expectation of probable harm was to be shown. Injury-based determination that must be undertaken by court must bal- ance aims of Act and objectives, namely, that exemptions were to be interpreted restrictively. Information that was with- held from applicant was done in manner that ran counter to principles of Act and LAC's mandate. LAC failed to exer- cise residual discretion once documents had been seen to be covered by s. 15 exemption. On balance of probabilities, court was not satisfi ed that dis- cretion was exercised and if dis- cretion was exercised it was not exercised in reasonable manner. Matter was set to LAC for re- determination. Bronskill v. Canada (Minister of Canadian Heritage) (Aug. 11, 2011, F.C., Noel J., File No. T-1680-09) 205 A.C.W.S. (3d) 612 (108 pp.). Immigration PERSON IN NEED OF PROTECTION No information to suggest police not making genuine and earnest efforts to investgate Application for judicial review of denial of refugee claim. Ap- plicants were citizens of Mexico who alleged fear of loan shark, who was associated with crimi- nal organization. Principal ap- plicant had borrowed money from loan shark then could not repay. Applicant alleged that he was beaten by loan shark and attempt was made to kidnap his daughter. Principal appli- cant and his family moved to diff erent locations in Mexico and made complaints to po- lice. Applicant's wife, did call police but did not remain to give a report and did not make any further attempts to follow up with police. Applicants fl ed to Canada and sought refu- gee protection. Member con- cluded that applicants had not rebutted presumption of state protection as documentary evidence indicated that issues of corruption and defi ciencies were being addressed by the state of Mexico. Member also concluded that there was no information to suggest that po- lice were not making genuine and earnest eff orts to investi- gate claimant's allegations and apprehend claimant's perpetra- tor. Claimant's choice to leave Mexico may have resulted in investigation being delayed or abandoned, given that he, as victim, was key witness. Member also concluded that as wife called police but did not remain to give report and did not make any further attempts to follow up with police, she had demonstrated only merest attempt to avail herself of pro- tection of police and without further contact police would be helpless in rendering support. Wife's actions did not sup- port contention of lack of state protection. Application dis- missed. Member had made no palpable or overriding error in reaching conclusion that there was adequate state protection. As to whether the applicants made suffi cient eff orts to avail themselves of state protection, fi ndings of member were not unreasonable. Lechuga v. Canada (Minister of Citizenship and Immigration) (July 20, 2011, F.C., Hughes J., File No. IMM-474-11) 205 A.C.W.S. (3d) 817 (6 pp.). SELECTION AND ADMISSION Adoption entered into for purpose of acquiring permanent resident status for daughter Application for judicial review of denial of permanent resi- dence application. Applicant and husband wished to spon- sor their adopted daughter, who lived in India, to become permanent resident of Canada. Daughter was husband's niece. Applicant fi led sponsorship ap- plication in 2005, but it was November 14, 2011 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 CaseLaw is a weekly summary of notable 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: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 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. turned down by visa offi cer who found that adoption was not genuine and was entered into for purpose of gaining permanent resident status in Canada for daughter. Appli- cant appealed to Immigra- tion Appeal Division ("IAD") which dismissed her appeal. IAD accepted that applicant and husband had originally wanted to adopt child because they were having trouble con- ceiving child of their own. But, after adoption, and after they had children of their own, it appeared more likely they were trying to help provide bet- ter life and opportunities for daughter. IAD found it unclear to what degree applicant and husband played role in daugh- ter upbringing, especially given their limited contact. Appli- cant did not travel to India for adoption. Applicant and hus- band did not visit daughter for four years after adoption and not for another two years after that. IAD found that parties had only superfi cial knowledge of one another. IAD found that applicant had not estab- lished development of genuine parent-child relationship with daughter and it appeared that adoption was entered into pri- marily for purpose of acquir- ing permanent resident status for daughter. Application dis- missed. After considering all of relevant factors and evidence as whole, IAD found that purpose of adoption was to assist daughter's admission to Canada, notwithstanding that original motivation was sin- cere. Looking at IAD's reasons its conclusion that daughter's adoption was entered into for purposes of acquiring immi- gration status in Canada was reasonable. Brar v. Canada (Minister of Citizenship and Immigration) (July 26, 2011, F.C., O'Reilly J., File No. IMM-385-11) 205 A.C.W.S. (3d) 825 (9 pp.). Prisons INMATES' RIGHTS Involuntary transfer may have been in retaliation for using grievance process Prisoner was serving life sen- tence for second-degree mur- der. Prisoner applied for judi- cial review of decision which denied his third-level grievance regarding refusal of warden to approve his nomination for po- sition on "Inmate Committee". Prisoner nominated himself for position on committee. War- den did not approve prisoner's nomination on basis that he www.lawtimesnews.com had not demonstrated com- mitment to reasonably resolve issues in conjunction with in- stitution's management team or other members of commit- tee. Warden indicated that pris- oner's past performance repre- senting inmates raised concerns about his "thinking styles" and suggested that accused focus his attention on his own per- sonal progress. Prisoner argued that warden failed to provide him with opportunity to make representations with respect to prohibition on his participation in committee. Prisoner was lat- er transferred out of institution. Application allowed. Applica- tion was moot. With prisoner's transfer out of institution, he was no longer eligible to serve on committee and controversy was no longer live one. Th is was appropriate case for court to ex- ercise discretion to hear matter. Prisoner's involuntary transfer may have been in retaliation for prisoner having used grievance process to challenge manage- ment decisions. Even if pris- oner could no longer stand for election on committee, there may have been collateral con- sequences arising out of both warden's decision and decision under review. Warden's deci- sion remained on prisoner's correctional fi le and could po- tentially have negative conse- quences for him down road. Neither second nor third level grievance decision addressed prisoner's submissions with respect to fl aws in process fol- lowed by warden. Failure to follow procedure prescribed by law violated prisoner's right to be treated fairly. Nothing to support warden's claim that prisoner's past representing inmates performance raised concerns about his thinking styles. Record suggested that prisoner made valuable con- tribution to committee. In absence of evidentiary foun- dation for warden's negative assessment, both warden's decision and third level griev- ance decision lacked justifi ca- tion, transparency and intelli- gibility required of reasonable decisions. Th ird level decision set aside. Copy of reasons or- dered placed on prisoner's cor- rectional fi les so as to ensure that complete picture was pro- vided with respect to events giving rise to application. Pris- oner received $350 for photo- copy expenses and fi ling fees. Spidel v. Canada (Attorney General) (Aug. 15, 2011, F.C., Mactavish J., File No. T-1933- 10) 96 W.C.B. (2d) 225 (17 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Complainant's evidence remained reliable and credible Appeal from conviction. Ac- cused was convicted of two counts of sexual assault, sen- tenced to 60 days' imprison- ment and 12 months' proba- tion. When appeal argued, he had served entire term of both his incarceration and proba- tion. Trial judge found that ac- cused placed his hand on com- plaint's chest above her breast and that he put his hand on complainant's ankle while he masturbated; accused massaged shoulder of complainant for sexual purpose and touched her thighs and spread her legs for sexual purpose. Trial judge re- viewed evidence of accused and provided reasons why she re- jected it. She was alive to frail- ties of complainant's evidence. Trial judge's reasons were not lacking in proper analysis. While trial judge did not spe- cifi cally mention the third test of W. (D.), it was clearly in her mind in assessing evidence as whole. She was alive to con- cerns about why complain- ant acted in way that she did and whether those concerns were able to be explained in a manner that allowed justice to conclude that complainant's evidence remained reliable and credible. Appeal dismissed. R. v. Oyebade (Aug. 15, 2011, Ont. S.C.J., Gilmore J., File No. 09-05487) 96 W.C.B. (2d) 193 (6 pp.). Contempt Of Court GROUNDS Mother's denial of access completely without merit Motion by father for order fi nd- ing mother to be in contempt of court. Parties had two children and separated. Minutes of Set- tlement provided that parties share joint-custody, that chil- dren live primarily with mother and that father have specifi ed access to children. Father al- leged that mother was in breach of terms of access. Mother did not appear at hearing. Motion granted. Mother denied father access to children from 2008 to present, contrary to judgment. Mother breached terms of judg- ment by failing to advise father of children's addresses; failing

• Cover
• IBA Censored?
• Law Matures
• Focus On Labour and Employment Law