Law Times

PAGE 14 CASELAW Internet and E-Commerce Law 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. FEDERAL COURT Employment PUBLIC SERVICE Board did not have jurisdiction to hear applicant's grievance Applicant grieved competition for Parole Officer position. Grievance alleged that employer violated s. 5 of Public Service Employment Act (Can.) ("PSEA"); Article 37 of applicant's collective agreement (non-discrimination clause); and Employment Equity Act (Can.). By time grievance was adjudicated, applicant indicated he was only seeking declaration that employ- er employer's appointment decision. Brown v. Treasury Board (Correctional Service of Canada) (Oct. 20, 2011, F.C., Kelen J., File No. T-1851-09) 208 A.C.W.S. (3d) 323 (14 pp.). Immigration EXCLUSION AND EXPULSION Applicant did not show meaningful rehabilitation violated non-discrimination clause of his collective agreement and Canadian Human Rights Act ("CHRA"), as well as damages for that violation. Employer objected to jurisdiction of Public Service Labour Relations Board to hear grievance. Board dismissed appli- cant's grievance on grounds that it did not have jurisdiction to hear grievance, pursuant to s. 208(2) of Public Service Labour Relations Act (Can.) ("PSLRA"). Application for judicial review was dismissed. Board was correct to find that it did not have jurisdiction to hear applicant's grievance. Section 208(2) of PSLRA clearly precluded presentation of grievance where another administrative procedure for redress was provided under another PSLRA of Parliament other than CHRA. Facts giving rise to applicant's grievance related to staffing appointment. Section 8 of PSEA, which was in force at time of applicant's grievance, granted exclusive authority over appointments to Public Service Commission. Section 21 of PSEA granted unsuccessful candidates right to appeal any appointment decision to commission. It was this process - appeal under s. 21 of PSEA that applicant should have pursued for redress in relation to Applicant's appeal of removal order on humanitarian and com- passionate grounds was dismissed. Application for judicial review was dismissed. IAD's reasons consid- ered interests of applicant's child. IAD was reasonable in assessment of lack of financial dependency of child on father. IAD consid- ered all evidence. It was reason- able to conclude applicant did not show meaningful rehabilitation. IAD's consideration of availabil- ity of family support system and recognition of positive factor was reasonable. IAD's determination of applicant's economic establish- ment was reasonable. Koonjoo v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 21, 2011, F.C., Near J., File No. IMM-1231-11) 208 A.C.W.S. (3d) 375 (13 pp.). Applicant was architect of her present predicament Applicant, Mexican citizen, had her refugee claim refused by Refugee Protection Division by decision dated February 24, 2009. By deci- sions dated April 19, 2010 and May 18, 2010, applicant's Pre-Removal Risk Assessment application and humanitarian and compassion- ate application, respectively, were denied. Applicant failed to show up at meeting with CBSA officials despite knowing consequences of such failure. Warrant was issued for applicant's arrest. Applicant fled to another province, British Columbia, thousands of kilome- tres away from Toronto without These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. informing immigration officials and causing them to have to track her down. Applicant used alias in order to receive medical treatment and avoid detection from immi- gration officials. Applicant contin- ued to live underground for many months until CBSA was able to track her down. Realizing that she was pregnant, however, CBSA did not take her into custody; rather CBSA released her on her own recognizance. Applicant gave birth to her son in November 2010 and got married in December 2010. She and her husband filed Spousal Sponsorship application on or around March 15, 2011. She now submitted that if she goes to Mexico she will not be able to return to Canada. Application for stay of removal order was refused. Applicant was architect of her present predicament. Because of applicant's disregard for immi- gration process and Canadian laws, court refused to exercise its equitable jurisdiction and denied this stay. Further, applicant failed to meet test for stay application; applicant failed to make out irrepa- rable harm; failed to raise serious issue to be tried; and balance of convenience favoured Minister. It was only Minister in his discretion who could decide whether appli- cant should remain in Canada until matter of sponsorship was concluded. Bazan v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 31, 2011, F.C., Shore J., File No. IMM-7434-11) 208 A.C.W.S. (3d) 376 (24 pp.). INADMISSIBLE AND REMOVABLE CLASSES Applicant knowingly collaborated with organization thereby being complicit in crimes against humanity Applicant was denied refugee sta- tus. Applicant was found to be excluded for having been com- plicit in crimes against human- ity. Board concluded applicant was complicit in atrocities committed by organization during applicant's years of collaboration with orga- nization. Application for judicial review was dismissed. Applicant failed to prove board's factual find- ings were unreasonable. It was not unreasonable for board to con- clude applicant knew bleak fate of those applicant reported as being subversive. Board's factual deter- minations were reasonable being supported by documentary and oral evidence. Board did not err in finding applicant knowingly collaborated with organization thereby being complicit in crimes against humanity and excluded from definition of refugee. Uriol Castro v. Canada (Minister of Citizenship and Immigration) (Oct. 27, 2011, F.C., Pinard J., File No. IMM-24-11) 208 A.C.W.S. (3d) 377 (11 pp.). REFUGEE STATUS Opinion regarding potential for gossip to spread did not constitute basis for quashing decision Applicant was denied refugee status. Board found applicant had viable internal flight alterna- tive. Board concluded applicant would not face gender-related dif- ficulties moving within country. Application for judicial review was dismissed. New issue raised by applicant had no merit. Applicant was not denied procedural fair- ness. Applicant was not prevent- ed from telling applicant's story to board. Board did not commit reviewable error simply because board used words "no evidence" as opposed to "no additional evi- dence". Board's rationale was clear from full reading of reasons. Applicant's opinion regarding potential for gossip to spread did not constitute basis for quashing board's decision. Applicant was asking court to reweigh evidence. It was not unreasonable for board to view fact applicant lived in city for eight months without incident as support for finding that appli- CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com CLL - 1/4 pg - 5X.indd 1 1/20/12 10:55 AM CANADIAN LAW LIST cant's risk was localized to original location. At no point did applicant claim applicant was persecuted on basis of gender. Lebedeva v. Canada (Minister of Citizenship and Immigration) (Oct. 14, 2011, F.C., Bedard J., File No. IMM-1790-11) 208 A.C.W.S. (3d) 378 (22 pp.). Applicant had not established personal identity Applicant was denied refugee status because applicant failed to establish identity. RPD found applicant's resident identity card was not authentic document. RPD found Hukou was not authentic document. RPD had concerns about occupational and gradua- tion certificates provided by appli- cant. RPD placed little weight on detention certificate and receipt. Application for judicial review was dismissed. It could not be said RPD materially misread docu- mentation regarding ready avail- ability of fraudulent documents in China. RPD's conclusions about occupational certificate were not unreasonable. Decision as whole was reasonable. RPD provided suf- ficient factual basis for its finding that applicant had not established personal identity. Applicant was asking court to reweigh evidence. Lin v. Canada (Minister of Citizenship and Immigration) (Oct. 31, 2011, F.C., Russell J., File No. IMM-645-11) 208 A.C.W.S. (3d) 379 (28 pp.). Applicant could not offer plausible reason why he was declared military target Immigration Refugee Board of Canada found applicants, citi- zens of Colombia, to be neither Convention Refugees nor persons in need of protection. Principal applicant's refugee claim, and con- sequentially claims of his wife and children, were rejected by board on basis that principal applicant lacked credibility and that his testimony at hearing contradicted documen- February 6, 2012 • Law Times

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