Law Times

PAGE 14 CASELAW 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 OF APPEAL Appeal STAY PENDING APPEAL Vagueness of order made it preferable to stay its application Respondents filed eight complaints with Commission of Official Languages concerning service received from appellant on eight different flights. Federal Court held that appellant had by its own admis- sion failed to comply with require- ments of Official Languages Act (Can.), on four occasions. Appellant was ordered to write apology, pay damages and costs, make every reasonable effort to comply with Act and introduce monitoring sys- tem. Appellant brought motion to stay elements of order relating to compliance with Act and monitor- ing system pending appeal under s. 398(1)(b) of Federal Courts Rules (Can.). Motion allowed. Considering exceptional nature of Federal Court Judge's order and admissions of respondents there was no hesitation conclud- ing that questions raised on appeal were indeed serious. Vagueness of aspect of order regarding making every reasonable effort to comply with Act made it preferable to stay its application until such time as Court of Appeal ruled on its merits and scope. Given months of work that would be required to imple- ment monitoring program due to size of workforce and magnitude of operations appellant could suf- fer irreparable prejudice if stay not granted as system could not be eas- ily undone if successful on appeal. Balance of inconvenience favoured appellant. Air Canada v. Thibodeau (Dec. 12, 2011, F.C.A., Blais C.J., File No. A-358-11) 209 A.C.W.S. (3d) 219 (16 pp.). Courts JUDGES No bias in comments made by judge Motion filed by appellants was ordered withdrawn and directions were issued. Appellants appealed interlocutory order. Appellants sought to vacate order. Appellants argued judge be disqualified from participating in further proceed- ings on ground that judge dem- onstrated bias against appellants. Appeal was dismissed. There was no basis for intervening with judge's exercise of discretion. Appellants had opportunity to make submis- sions prior to issuance of second order and did so by letter and dur- ing pretrial conference. Appellants chose to raise issues that had been raised and finally disposed of by other judge. There was no basis for request to remove judge. There was no bias in comments made by judge during second teleconfer- ence. Second order allowed appel- lants to file motion on admissibil- ity of evidence and left door open for future motions once issue was settled. 506913 N.B. Ltd. v. Canada (Nov. 23, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-152-11) 209 A.C.W.S. (3d) 459 (9 pp.). FEDERAL COURT Aboriginal Peoples GENERAL Unreasonable for council to suspend applicant solely on basis of criminal charges Application for judicial review of decision of Fort McKay First Nation Council to suspend appli- cant from position as councillor by band resolution. Applicant charged with offence of sexual assault but not yet convicted. Application allowed. Respondent had jurisdic- tion pursuant to Election Code to suspend councillors in range of circumstances. Causes related to conduct in office. Broader clause relating to such further or other conduct which is sufficiently seri- ous to warrant cause in all of the circumstances would similarly relate to conduct in office. No men- tion of criminal charges serving as sole cause of suspension. Election Code had covered field and there were no additional inherent or cus- tomary powers to suspend. Failure of council to comply with its own procedures and set out specified causes for suspension amounted to breach of procedural fairness. Unreasonable for council to sus- pend applicant solely on basis of criminal charges as this was dif- ferent from types of categories referred to in Election Code related to councillor's conduct in office. Orr v. Fort McKay First Nation (Nov. 14, 2011, F.C., Near J., File No. T-1180-11) 209 A.C.W.S. (3d) 207 (12 pp.). Immigration EXCLUSION AND EXPULSION Psychological stress, depression or anxiety resulting solely from remov- al does not constitute irreparable harm Motion for stay of execution of removal order pending judi- cial review of second negative Pre-Removal Risk Assessment ("PRRA") decision. Applicant citi- zen of South Korea who came to Canada two and one-half years ago and made unsuccessful refu- gee protection claim. Applicant had no family or assets in Canada and was being supported by social assistance. Applicant had become so fearful of removal that she was suicidal. Canada Border Services Agency had arranged for applicant to be escorted by psy- chiatric nurse and officer on trip, to be met by medical escort for admission and treatment in spe- cialized hospital, in addition to a Canadian Migration Integrity These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Officer and a South Korean gov- ernment official to ensure her physical protection. Applicant highly vulnerable woman with documented physical and mental disabilities caused by her treat- ment in South Korea. Application dismissed. Second PRRA officer interpreted and applied correct legal test for state protection and reasonably concluded applicant failed to rebut presumption regard- ing availability of state protection. No serious issues had been raised with respect to underlying judicial review application challenging decision. Allegations cannot serve as basis for argument support- ing irreparable harm where alle- gations of risk have already been assessed and previously found not to be well-founded by triers of fact. Psychological stress, depres- sion or anxiety resulting solely from removal does not constitute irreparable harm. Agency had gone to extraordinary lengths to ensure that all possible measures had been taken to keep applicant safe until she was removed, during removal process, and upon her arrival in South Korea. South Korean gov- ernment had committed itself to applicant's receiving proper medi- cal attention and safekeeping from loan sharks. Roh v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 7, 2011, F.C., Shore J., File No. IMM-7853-11) 209 A.C.W.S. (3d) 409 (23 pp.). REFUGEE STATUS Board's reasons did not analyze restriction on ability to pursue a livelihood Application for judicial review of decision of Refugee Protection Division of Immigration and Refugee Board that applicant was not Convention Refugee or person in need of protection. Board found that treatment faced by applicant who was a person of Roma ethnicity constituted discrimination but not persecution. Board also found that state protection would be available in Hungary. Application allowed. Claim of persecution broader that just attacks he experienced. Board did not address important aspect of claim that Roma are persecuted because of their race and he experi- enced such treatment when he was demoted from cook to dishwasher because he was Roma and could not find employment elsewhere as cook. Taking note of fact that appli- cant not allowed to work in trade as cook despite having been trained in that vocation not enough. Board's reasons referred to but did not analyze restriction on ability to pursue a livelihood. Assessment of whether state protection available failed to have regard to applicant's personal circumstances. Board did not address documentary evidence having regard to restrictions placed upon opportunities to earn liveli- hood in area for which applicant trained. Horvath v. Canada (Minister of www.lawtimesnews.com Citizenship and Immigration) (Nov. 23, 2011, F.C., Mandamin J., File No. IMM-4326-10) 209 A.C.W.S. (3d) 417 (21 pp.). Earlier history relevant even if no longer helpful or convenient Application for judicial review of decision of Refugee Protection Division of Immigration and Refugee Board that applicant was not Convention Refugee or person in need of protection. Applicant's decision to abandon legal residency in United States and to return to Columbia in 2005, and his earlier temporary reavailment in 2003 strongly influenced board's find- ing. Applicant lacked credibility. Application dismissed. Applicant sought to isolate 2009 protection claim from events predating return in 2005. Earlier history relevant to claim even if it was no longer helpful or convenient. Board unim- pressed with apparent embellish- ment of risks that constituted basis for departure from Columbia in 1999. That evidence and his 2005 reavailment were relevant to asser- tion of risk in 2009. Reasonably open to board to consider entire history in rejecting overall cred- ibility. Ortiz Garcia v. Canada (Minister of Citizenship and Immigration) (Nov. 22, 2011, F.C., Barnes J., File No. IMM-3065-11) 209 A.C.W.S. (3d) 419 (7 pp.). Taxation INCOME TAX Applicant's situation brought about by its own unreasonable errors Application for judicial review of decision by Minister of National Revenue denying application for relief from payment of interest on applicant's income tax. CRA imposed interest amounts because applicant had been late in filing its returns for 2001, 2002 and 2005. Applicant was United States resi- dent corporation that produced and sold kitchen appliances and other household items in Canada from 1999 to 2008. Delegate found that applicant had not shown it was prevented from complying with filing requirements due to factors beyond its control or that payment of interest would cause it undue hardship. Application dis- missed. Minister's interpretation of s. 220(3.1) of Income Tax Act (Can.), correct and decision rea- sonable. Minister's delegate did not fetter her discretion by consider- ing herself bound by Guidelines or other administrative policies. Delegate considered and reviewed all of information and submissions available and referred to Guidelines in exercise of discretion. Minister's delegate did not conclude she could only grant relief if extraordinary circumstances were demonstrated or if any of the other specifically enumerated grounds in Guidelines made out. Minister's delegate con- sidered all of applicant's submis- sions and explanations but found them wanting. Minister's delegate reasonably concluded that appli- cant's situation was brought about by its own unreasonable errors. Toastmaster Inc. v. M.N.R. (Nov. 15, 2011, F.C., O'Reilly J., File No. T-1251-10) 209 A.C.W.S. (3d) 467 (16 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Access to justice goal did not trump considerations of judicial economy Plaintiffs operated tobacco farm in Ontario between 2001 and 2008. In 2009, plaintiffs brought action in Ontario Superior Court of Justice ("OSCJ") for damages against Canada and Ontario for alleged failure to enforce various legislation but had yet to bring motion for certification. Year later, plaintiffs brought action in Federal Court ("FC") claiming same relief. Plaintiffs brought motion for leave to discontinue OSCJ action so as to pursue parallel actions in FC against Ontario and Canada to avoid potential adverse costs award on certification motion. Motion dismissed. Access to justice goal did not trump consideration of judicial economy. Prejudice to putative class was not only con- cern flowing from discontinu- ance order. Order plaintiffs sought would give rise to other consider- ations including duplicative litiga- tion, potential inconsistent results, possible undue costs, and inconclu- sive proceedings. Despite plaintiffs' contention that causes of action against Canada were different from those advanced against Ontario regulation of tobacco products at federal and provincial level was delicately interwoven. OSCJ was only forum where plaintiffs could proceed against both defendants. No costs regime under Rule 334.39 of Federal Court Rules (Can.), did not apply to motion to strike out. Federal government was intending to launch third party claims for contribution and indemnity once exchange of pleadings was com- plete so s. 50.1(1) of Federal Courts Act (Can.), would be engaged and action would be returned to OSCJ in any case. Weninger Farms Ltd. v. M.N.R. (Nov. 23, 2011, Ont. S.C.J., Tausendfreund J., Courts JURISDICTION Merely routing funds through Ontario not sufficient to establish connection Plaintiff was Hong Kong based company. Defendants were com- panies based in United States. Plaintiff companies and suffered complete invested in defendant File No. 64078CP) 209 A.C.W.S. (3d) 234 (7 pp.). March 5, 2012 • Law TiMes

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