Law Times

PAGE 16 CaseLawLaw FEDERAL COURT Crown ARMED FORCES Course of action taken by board arrived at through fair process Applicant failed three baseline exercises. Board determined ap- plicant should cease geo tech training. Applicant successfully grieved and was given credit for qualifi cation level 4. Applicant failed two performance objec- tives in qualifi cation level 5. Board again recommended ap- plicant cease geo tech training. Commanding offi cer ordered recommendation to be put into eff ect. Applicant's grievance was dismissed. Applicant was found to have been treated fairly, rea- sonably and in accordance with Canadian Armed Forces policies and directives. Application for judicial review was dismissed. Applicant's attempts at retest were not likely to be success- ful. Applicant simply disagreed with decision. Allegations that it was unfair in endorsing taint- ed earlier decision were noth- ing more than bald assertions. Th ere was nothing that could be described as reviewable er- ror based on unreasonableness or procedural fairness. Decision was reasonable. Course of ac- tion taken by board was within its jurisdiction and arrived at through fair process. Assertions applicant was deprived of op- portunity to present case was unsubstantiated. Syed v. Canada (Attorney Gen- eral) (July 29, 2011, F.C., Rus- sell J., File No. T-1704-10) 205 A.C.W.S. (3d) 396 (21 pp.). Immigration EXCLUSION AND EXPULSION Danger opinion remained valid despite overturning of conviction Applicant was permanent resi- dent. Applicant incurred exten- sive criminal record. Applicant was convicted of sexual assault of former spouse. Danger opin- ion was issued against appli- cant. Applicant was deported. Applicant re-entered Canada without approval of Minister and was charged with re-enter- ing without permissions. Two inadmissibility reports were is- sued against applicant. Second deportation order was issued. Former spouse recanted allega- tions of sexual assault. At new trial sexual assault charges were dismissed. Danger opinion and fi rst deportation order were al- ready judicially reviewed. Ap- plicant sought to quash danger opinion and two deportation orders. Application for judicial review was dismissed. Court was not in position to consider submission on res judicata giv- en direction from Federal Court of Appeal and following its ap- plication by Justice. Danger opinion remained valid despite overturning of conviction for sexual assault. Danger opinion was based on three convictions. Danger opinion was not based on nullity. First deportation order was moot. Second de- portation order was valid. In- admissibility report and second deportation order were not to be quashed despite overturning of criminal conviction. Loss of permanent residence status was legal and there was no error in execution of deportation order. Section 326(2) of Immigration and Refugee Protection Regula- tions (Can.), remained in eff ect. Pascale v. Canada (Minister of Citizenship and Immigration) November 7, 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. (July 13, 2011, F.C., O'Keefe J., File No. IMM-3127-10) 205 A.C.W.S. (3d) 500 (25 pp.). INADMISSIBLE AND REMOVABLE CLASSES Inadequacy of medical officer's reasons amounted to denial of natural justice Application for permanent residence was denied. Offi cer considered that one of children suff ered from health condi- tion that might reasonably be expected to cause excessive de- mand on health and social ser- vices. In response to fairness let- ter, applicants provided plan for child. Offi cer considered plan to be inadequate. Application for judicial review was allowed. Willingness and capacity of family to pay for any required programs was not taken into consideration. Th ere were no reasons in support of medi- cal offi cer's opinion on record other than passing reference in CAIPS notes. Statement did not provide information as to why medical offi cer considered child inadmissible. Failure of offi cer to identify what addi- tional costs were considered to constitute excessive demand in fairness letter and inadequacy of medical offi cer's reasons amounted to denial of natural justice. Cramer v. Canada (Minister of Citizenship and Immigration) (July 8, 2011, F.C., Mosley J., File No. IMM-4081-10) 205 A.C.W.S. (3d) 534 (8 pp.). PERSON IN NEED OF PROTECTION Officer's reasons inadequate in that evidentiary basis for conclusion not stated Pre-removal risk assessment offi cer determined applicant would not be subject to risk of persecution, danger of torture, risk to life, or risk of cruel and unusual treatment if returned to country of origin. Offi cer found applicant's failure to claim refugee asylum in United States or United Kingdom did not support fi nding applicant had subjective fear. Application for judicial review was allowed. Offi cer's reasons were inad- equate in that evidentiary basis for conclusion was not stated. Sivabalasuntharampillai v. Canada (Minister of Citizen- ship and Immigration) (Aug. 4, 2011, F.C., O'Keefe J., File No. IMM-2348-10) 205 A.C.W.S. (3d) 508 (11 pp.). Injunctions INTERLOCUTORY RELIEF Applicants failed to establish they would suffer irreparable harm Applicants were members of respondent. Applicants sought interim order in nature of man- datory injunction. Applicants sought to enjoin respondent from holding itself out as regu- lator of immigration consul- tants with power to suspend them. Applicants sought to direct respondent to place on website notice that it was no longer regulator of immigra- tion consultants and to remove all names of individuals respon- dent allegedly suspended after specifi ed date. Motion was dis- missed. Applicants failed to es- tablish applicants would suff er irreparable harm. Much of con- fusion was already resolved and aff ected parties would continue to clarify any residual confusion over next few weeks. Fridriksdottir v. Canadian Soci- ety of Immigration Consultants (July 20, 2011, F.C., Snider J., File No. IMM-4403-11) 205 A.C.W.S. (3d) 539 (14 pp.). TAX COURT OF CANADA Employment Insurance ENTITLEMENT Lump sum given for loss of employment qualified as retiring allowance and excluded from insurable earnings Appellant took maternity leave. Employer paid amounts to ap- pellant to top up maternity leave. Employer terminated ap- pellant's employment. Appel- lant's position was eliminated and replaced with reclassifi ed position. Appellant received lump sum for loss of employ- ment. Appellant applied for unemployment benefi ts. Ap- pellant was informed appellant did not qualify for benefi ts. Ap- peal was dismissed. Lump sum given for loss of employment qualifi ed as retiring allowance which was excluded from in- surable earnings. Amendment made to Insurable Earnings and Collection of Premiums Regu- lations (Can.), excluded from insurable earnings maternity leave top up. Geddes v. M.N.R. (Aug. 8, 2011, T.C.C., D'Auray J., File No. 2010-3092(EI)) 205 A.C.W.S. (3d) 406 (8 pp.). Taxation GOODS AND SERVICES TAX While transfer amounted to negligence, action did not constitute gross negligence Appeal by taxpayer from reas- sessment by Minister. Taxpayer transferred house it was build- ing to its two shareholders. Tax- payer did not collect or remit GST on transfer. Minister as- sessed taxpayer on basis that it With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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• Justicia Extended
• Texting Dangers
• Focus On Family Law