Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Immigration EXCLUSION AND EXPULSION Application for urgent hearing denied Application for urgent hearing of motion for stay of removal. Applicants were citizens of Albania who entered Canada in 2002 using forged Greek passports. Applicants claimed refugee status based on fear of persecution because of their father's political opinion. Refu- gee claims were denied and ap- plication for judicial review was dismissed. Applicants made Pre-Removal Risk Assessment ("PRRA") application and ap- plication for exemption from making permanent residence application from within Cana- da on humanitarian and com- passionate ("H&C") grounds. Both applications were denied in December 2009. Applica- tion underlying motion for stay was stated to be with re- spect to both PRRA and H&C decisions. Applicants were served with Direction to Re- port for Removal to take place on March 19, 2010. Direction was served on applicants 17 days before removal. Applicants took no steps to defer or stay removal until this motion was filed March 19, 2010. Applica- tion for urgent hearing denied. Relief sought by applicants was equitable, discretionary relief. Applicants waited until elev- enth hour to file and serve their motion. Applicants retained new counsel as they had lost confidence in those who had previously represented them. A party who seeks equity must do equity. Applicants cannot expect respondent or this court to automatically respond on timetable of their own making. It is unfair and unjust to ask that respondent and this court jump through hoops when ap- plicants had every opportunity to bring this motion on regu- larly scheduled day for hear- ing motions. For these reasons court refused to hear motion. Pulo v. Canada (Minister of Citizenship and Immigration) (Mar. 19, 2010, F.C., Zinn J., File No. IMM-1521-10) 187 A.C.W.S. (3d) 499 (5 pp.). INADMISSIBLE AND REMOVABLE CLASSES Applicant was inadmissible for serious criminality Applicant was Lebanese citizen and member of Lebanese Forc- es ("LF"). He fled civil war in Lebanon and claimed refugee status on arriving in Canada. He obtained permanent resi- dent status. Applicant was con- victed of criminal offences and sentenced to imprisonment in Montreal. Applicant was deter- mined to be inadmissible for serious criminality under Im- migration and Refugee Protec- tion Act (Can.), and ordered to be deported. He brought ap- plication for Pre-Removal Risk Assessment ("PRRA") alleging risk to life or of cruel punish- ment or treatment in Lebanon by reason of membership in LF and alleged conviction on mur- der charge tried in absentia in Lebanon. To establish convic- tion applicant submitted letter faxed by LF. PRRA officer gave little probative value to letter and rejected application. Ap- plicant sought judicial review. Judicial review refused. Con- trary to argument of applicant PRRA officer did not commit breach of procedural fairness May 10, 2010 • Law TiMes COURT DECISIONS ainmaker_LT_June2_08.indd 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: 5/28/08 10:43:29 AM 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. by rejecting letter without call- ing applicant to hearing first. Immigration and Refugee Pro- tection Regulations (Can.), provided for hearing as option when evidence raised cred- ibility issue. Hearing was not called for under Regulations as letter from LF did not concern applicant's credibility. As well careful reading of officer's de- cision revealed letter was not key factor in assessment of risk. Officer reasonably concluded that applicant was no longer at risk by reason of member- ship in LF. Applicant asserted Lebanese government today was puppet controlled by Syr- ian government opposed to LF but submitted no objective evi- dence in support of assertion. Contrary evidence showed LF had become legitimate political party and was part of coalition that won June 2009 legislative elections. Decision of officer was reasonable. El Morr v. Canada (Minister of Citizenship and Immigra- tion) (Jan. 4, 2010, F.C., de Montigny J., File No. IMM- 2171-09) 187 A.C.W.S. (3d) 301 (21 pp.). Labour Relations JUDICIAL REVIEW Not every negative decision by adjudicator can be basis of allegation of bias Motion by First Nation for order staying adjudicator from continuing with hearing of complaint filed by former employee, A.. A. alleged she was unjustly dismissed from employment March 6, 2007, and submitted her complaint May 11, 2007. Applicants filed underlying application for judicial review January 15, 2010, seeking order that hear- ing of complaint take place in Fort Frances, rather than in Thunder Bay as ordered by adjudicator and order remov- ing adjudicator due to bias, his refusal to change location of hearing and refusal to re- cuse himself as adjudicator and voiding all decisions made by him in relation to com- plaint proceedings. Motion dismissed. Not every negative decision by adjudicator can be basis of allegation of bias. Here, court need not decide whether applicant had shown serious issue for trial existed because court was not satisfied that applicant had not met its burden to show that it would suffer irreparable harm if stay were refused. Affidavits filed on behalf of applicant did not provide adequate evidence of irreparable harm. It therefore followed that applicant could not show that balance of con- venience lay in its favour. In absence of sufficient probative evidence of irreparable harm, applicant's motion for stay must fail. Couchiching First Nation v. Baum (Mar. 19, 2010, F.C., Heneghan J., File No. T-72- 10) 187 A.C.W.S. (3d) 518 (10 pp.). ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW No jurisdiction to judicially review decision of private organization Association held emergency board meeting to deal with al- legation of drunkenness, theft and damage to member's golf cart. It was alleged son of ap- plicants, aged 17, was involved. Steps were taken to have him barred from park for period of time. Applicants sought leave to bring matter before Superi- or Court on urgency grounds. Urgency was not justified. Fail- ure of applicants to pursue re- lief earlier did not now make situation urgent. Respondent's motion to dismiss application for judicial review was allowed. There was no jurisdiction to judicially review decision of private organization. Herd v. Port Severn Campers Assn. (Mar. 12, 2010, Ont. S.C.J., Milanetti J., File No. DC 09-176JR) 187 A.C.W.S. (3d) 318 (6 pp.). Civil Procedure CHANGE OF SOLICITOR Dismissal of motion to have plaintiffs' solicitors removed was upheld on appeal Defendant sought to have so- licitors of record for plaintiffs removed. Solicitors consulted and retained police detective who had received confidential information prior to retire- ment in context of solicitor- and-client relationship relating to action. Master dismissed defendants' motion. Appeal was dismissed. It was not likely confidential information was imparted. Work detective did on two retainers did not give rise to risk of disclosure of confidential information. No impropriety was made out. Conduct did not rise to level of prima facie case. Master did not err in finding contact with detective was not prohibited pursuant to Rules of Profes- sional Conduct. 728654 Ontario Inc. v. Ontar- io (Feb. 24, 2010, Ont. S.C.J., Spence J., File No. 01-CV- 220921 CM2; 04-CV-271421 CM1) 187 A.C.W.S. (3d) 334 (23 pp.). www.lawtimesnews.com LegalAid_LT_May10_10.indd 1 5/3/10 4:08:22 PM

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