Law Times

Law Times • July 27, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Crown IMMUNITY In exercising royal prerogative of mercy, Minister has broad discretion Appellant granted parole after serving third of 15-year sen- tence. Appellant's three applica- tions for mercy to federal Minis- ter of Justice and application for pardon denied. Following in- vestigation, Commission de po- lice du Quebec stated it hoped Attorney General of Quebec (AGQ) would intervene. In re- sponse to fourth application for mercy, Minister stated appel- lant should seek relief in Quebec Court of Appeal. Quebec Court of Appeal allowed appeal but directed stay. Supreme Court of Canada acquitted appellant. Appellant commenced action against AGQ, Attorney General of Canada (AGC) and town of Mont-Laurier. Town and AGQ settled out of court and action continued against AGC. Supe- rior Court ordered AGC to pay almost $5.8 million, finding simple fault sufficient for Crown liability. Trial judge concluded federal government committed "institutional indifference" and that sustained and extensive re- view would have uncovered er- rors. Court of Appeal reversed judgment, finding that Minis- ter's power of mercy protected by immunity analogous to that applying to Crown prosecutor in case of malicious prosecu- tion. It also found that AGC's conduct at trial amounted to abuse of process and ordered AGC to pay appellant's legal fees even though appellant's lawyer took case pro bono. In absence of intentional or gross fault, or even simple fault, by Minister, appellant's action dismissed. Appellant's appeal dismissed. Federal Crown generally sub- ject to rules of civil liability; only true policy decisions are protected by Crown immunity. Power of mercy derives from royal prerogative of mercy. In exercising royal prerogative of mercy, Minister has broad dis- cretion. Minister must assess and weigh public policy consid- erations on basis of social, po- litical and economic factors; it is true core policy act. Inappropri- ate to import malice standard. In Quebec civil law, concept of bad faith is f lexible, encom- passing serious recklessness. At minimum, Minister must con- duct meaningful review which entails duty to make decision in good faith on basis of evidence uncovered by that review. Doc- umentary evidence negated trial judge's inference there had been no review of appellant's initial application. Circumstances did not support conclusion that any Ministers acted in bad faith or with serious recklessness on any applications. Even if Minister had conducted more extensive investigation, there was no evi- dence Minister would probably have discovered key evidence uncovered by investigator of Commission de police 20 years later. Appellant failed to prove failure to conduct meaningful review or to conduct one more expeditiously was probable cause of failure to discover mis- carriage of justice. Not appro- priate to award punitive damag- es given that Minister's conduct could not be equated with bad faith or serious recklessness nor could it be said he intended to harm appellant. Only abuse of process can justify awarding ex- trajudicial fees as damages. Trial judge erred in finding abuse of process; AGC's conduct did not amount to abuse of process. It was reasonable and appropriate for AGC to contest action given that law on federal Crown's li- ability for fault committed by Minister in exercising power of mercy was far from clear. Appel- lant not entitled to extrajudicial fees. Hinse v. Canada (Attorney Gen- eral) (Jun. 19, 2015, S.C.C., McLachlin C.J.C., Lebel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35613) 253 A.C.W.S. (3d) 822. FEDERAL COURT OF APPEAL Appeal PLEADINGS Request for particulars was fishing expedition Plaintiff sued defendants for in- fringement of certain industrial designs related to f loor heating grates. Defendants sought par- ticulars with respect to three cat- egories: store outlets and loca- tions where plaintiff 's products were sold; scope and nature of its products; and timeline of sale of its products. Defendants sub- mitted particulars were relevant to its defences of whether plain- tiff was proprietor for purposes of Industrial Design Act (Can.), and whether it had registered its designs in timely fashion. Mo- tion judge denied request for particulars on basis that defen- dants had embarked upon im- permissible fishing expedition in respect of matters that were not relevant to plaintiff 's claim, and/or were within defendants' own knowledge. Defendants ap- pealed. Appeal dismissed. Pur- pose of particulars was to facili- tate ability to plead. Defendants' request for particulars related to matters relevant to propriety of information sought on dis- covery rather than information they required in order to plead. No palpable and overriding er- ror was made in concluding defendants were engaged upon fishing expedition. Finding that some particulars sought were within knowledge of defendant HD was fact-based finding that did not give rise to any error. Imperial Manufacturing Group Inc. v. Decor Grates Inc. (Apr. 20, 2015, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., File No. A-415-13) 253 A.C.W.S. (3d) 799. FEDERAL COURT Citizenship OFFENCES Sufficient evidence that appli- cant attempted to organize, induce, aid or abet coming into Canada of imposter Applicant was Canadian citi- zen. In 2010, he took business trip to Belgium and Germany with his friend and business partner, L. Their travel was routed through Istanbul, Tur- key. Turkish authorities did not allow L to board plane due to a belief he was imposter. L was returned to Germany. Citizen- ship and Immigration Canada ("CIC") investigated and con- cluded that L was being imper- sonated by another individual using L's Canadian passport. In 2012, CIC revoked applicant's passport and denied him access to another passport until 2015, after concluding applicant had used his passport while acting as escort to assist unidentified individual unlawfully using L's passport to board f light to Canada. Applicant sought ju- dicial review of CIC decision. Application dismissed. CIC had jurisdiction to revoke ap- plicant's passport and deny him passport services on basis that he committed act that would constitute indictable offence if committed in Canada. Under s. 10(2)(b) of Canadian Pass- port Order, meaning of word "committed" did not require conviction as precondition to revocation of passport, as mere commission of act that con- stituted offence was sufficient. There was sufficient evidence for CIC to reach conclusion that applicant attempted to organize, induce, aid or abet coming into Canada of imposter. CIC made no reviewable error in its assess- ment of evidence. Applicant was accorded procedural fairness. Evidence disclosed to applicant was information CIC relied on to make its decision and that in- formation was sufficient to sup- port CIC's conclusion. Gomravi v. Canada (Attorney General) (Apr. 17, 2015, F.C., Martine St-Louis J., File No. T-499-14) 253 A.C.W.S. (3d) 774. Immigration SELECTION AND ADMISSION Determination of inadmissibility could not be re-litigated by par- ties or re-determined by officer Foreign national was citizen of Sri Lanka and United Kingdom who had applied for permanent resident visa. In 2010 officer found foreign national inad- missible pursuant to s. 34(1)(f ) of Immigration and Refugee Protection Act (Can.) as offi- cer found that foreign national had been member of Libera- tion Tigers of Tamil Eelam. Ap- plication for judicial review of that decision was dismissed. Foreign national submitted an- other application for permanent residence in Canada in August 2011, in which he denied hav- ing previously made permanent residence applications which were refused. Officer sent for- eign national fairness letter as result of misrepresentation. In 2013 officer found foreign na- tional inadmissible pursuant to s. 34(1)(f ) of Immigration and Refugee Protection Act and found insufficient humanitar- and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. 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