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CaseLawLaw PAGE 16 FEDERAL COURT Aboriginal Peoples Two councillors of the Salt River First Nation ("SRFN") objected to transfers of nearly $1,700,000 in SRFN funds to the SRFN's chief or family members and to two other councillors. In con- text of judicial review applica- tion seeking injunctive relief, applicants sought order that respondents BANDS Quo warranto not an available remedy 08) Order No. 009/033/086 (17 pp.). J., File No. T-1582- Administrative Law REMEDIES Extension of time to Applicant sought order of man- damus requiring respondent to make decision on whether or not to allow him extension of time to request reconsideration request reconsideration would create collateral attack on tribunal's decision relating to three funds transfers, correspondence between SRFN and its lawyers regarding trans- fers, and; trust ledgers, file notes and records of SRFN's lawyers relating to transfers. Order re- fused. Underlying issue was whether payments were autho- rized by persons voting in con- flict of interest and whether in- dividuals illegitimately received funds. Documents related to two transfers irrelevant. Third payment funded compensation program from which payments disbursed. Respondents ordered, and agreed, to provide account- ing of names of those persons in receipt of funds. Applicants also brought motion seeking declaration that quo warranto remedy was properly claimed. Court concluded that quo warranto remedy not properly claimed. Remedy available to challenge right of public official to hold office, and does not ex- tend to case of alleged illegalities or abuses committed by public office holder. Quo warranto a discretionary remedy not avail- able where relief sought may otherwise be obtained. Here, injunctive relief could prevent future transfers. Improper past transfers could be subject of ac- tion for damages. Salt River First Nation #195 v. Martselos (Jan. 9, 2009, F.C., Snider produce: records Extension of time would create collateral attack on tribunal's decision and, if reconsideration were successful, there would be inconsistent decisions. Extend- ing the time would also vio- late principle of finality and it would be an improper exercise of discretion to extend time by 17 years. Absence of any legal duty to act was fatal to relief sought by applicant. Sabo v. Canada (Minister of Human Resources and Social Development) (Jan. 5, 2009, F.C., Lutfy C.J., File No. T-856- 07) Order No. 009/033/087 (6 pp.). of 1987 decision. Applicant had applied for CPP disability bene- fits in 1987 but had application denied. Applicant did not seek reconsideration, despite being advised that he could, and in- stead made second application seven years later. Second appli- cation denied, reconsidered and appealed. Tribunal dismissed appeal, finding applicant was not disabled within meaning of plan. Applicant later made third application, which was denied, reconsidered and appealed. Tri- bunal dismissed appeal, find- ing applicant had presented no new facts. Applicant then sought extension from respon- dent on time-limit to request reconsideration of 1987 deci- sion. Respondent stated it had no discretion to do so as it was bound by 1997 decision of tri- bunal. Application dismissed. Citizenship QUALIFICATIONS Appeal from denial of Appeal from denial of appel- lant's citizenship application. Appellant arrived from Bangla- desh, with mother, as a refu- gee in 1997 and attended high school in Canada. Appellant was granted permanent resi- dence status in 2002 and made her citizenship application in 2005, submitting supporting documentation of bank state- ments, tax returns and letters of community support. Appellant had 493 documented days of absence from Canada, which, as she explained to the judge, were to attend weddings, including her own, and for holiday and to visit her husband. In decision, judge listed details of appellant's absences and stated appellant had not accumulated 1,095 days in Canada for four years preced- ing application. Judge calculated appellant had been present in Canada just 636 days and failed citizenship application allowed May 4, 2009 • Law TiMes COURT DECISIONS ainmaker_LT_June2_08.indd 1 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 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. to submit any supporting mate- rial. Appeal allowed and citizen- ship recommended. Citizenship judge failed to assess any days of residency before appellant became a permanent resident, even though this was within four-year period preceding ap- plication. While the appellant still would not have had 1,095 days, this was an error in law that required correction. Judge unclear on which test he had applied, noting "physical pres- ence", "residence" and "at least three years". References to mix of tests created ambiguity and decision disclosed no clear fac- tual analysis. Judge also erred in his perfunctory dismissal of ap- pellant's supporting documen- tation. Appellant was clearly established in Canada and had lived here half her life. Appel- lant had a stronger connection to Canada than any other coun- try and planned to bring her husband here and had been ap- proved to be his sponsor. Islam v. Canada (Minister of Citizenship and Immigration) (Jan. 7, 2009, F.C., Teitelbaum J., File No. T-825-08) Order No. 009/033/089 (13 pp.). Employment PUBLIC SERVICE Grievance beyond jurisdiction of Public Service Labour Relations Board Spencer v. Canada (Attorney General) (Dec. 18, 2008, F.C., Mactavish J., File No. T-75- 08) Order No. 009/033/078 (21 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Application for judicial review of Canadian Human Rights Commission ("CHRC") de- cision dismissing applicant's complaint that the airline failed to accommodate her disability and age by ensuring accessible washroom in flight. Applica- tion dismissed. CHRC investi- gations must satisfy conditions of neutrality and thoroughness, but CHRC and investigators should be afforded consider- able latitude in choice of pro- cedures. Investigation of appli- cant's complaint was objective and unbiased. Investigator went to great lengths to interview in- dependent witnesses. Applicant had opportunity to provide complete information Dismissal of complaint against airline upheld on judicial review Application for judicial review of Public Service Labour Rela- tions Board ("PSLRB"), deci- sion denying applicant's griev- ance for want of jurisdiction on basis that the pith and substance of matter involved the Treasury Board's Term Employment Policy ("TEP"), rather than interpretation or application of collective agreement. Original grievance complained of em- ployer's refusal to provide layoff protection benefits under Work Force provisions of collective agree- ment on grounds she was not indeterminate government em- ployee following expiry of fixed term contract. Judicial review application dismissed. PSLRB correctly concluded that griev- ance was beyond its jurisdic- tion. Issue in dispute centred on threshold question of whether, by operation of the TEP, she was eligible to take advantage of layoff protections. TEP not intended to be legally binding on PSLRB, as evident from its omission from the list of direc- tives, policies and regulations forming part of the collective agreement itself. Adjustment ("WFA") www.lawtimesnews.com ing her disability. Any oversight by investigator cured by letter from doctor providing detailed information. Greaves v. Air Transat Inc. (Jan. 6, 2009, F.C., Teitelbaum J., File No. T-1649-07) Order No. 009/033/083 (16 pp.). regard- Immigration Application for judicial review of decision that applicant's wife inadmissible under family class due to misrepresentation. Applicant and wife submitted marriage certificate and Nikah Nama as evidence of their mar- riage in 2002. Immigration Officer sent applicant's wife a letter warning her that her Nikah Nama was being deemed fraudulent because an investiga- tor had visited Ward 11 office and Nikah Nama not registered there. Applicant's wife sent let- ter explaining that wards had been renumbered and what was Ward 11 was now Ward 23 and 24. Sponsorship application was denied and appealed. Immigra- tion Appeal Division denied ap- peal on basis that Nikah Nama did not mention ward number, vakil who represented bride had INADMISSIBLE AND REMOVABLE CLASSES Inadmissibility determination did not stand up to somewhat probing analysis also solemnized marriage, there were discrepancies between marriage certificate and registry document and Ward 11 had not existed at that time. Application allowed. Decision did not even stand up to somewhat probing analysis. Applicant had already pointed out to officials that the ward number was clearly visible on marriage certificate and no argument had been made that lack of ward number of Nikah Nama invalidated it. No evi- dence had been presented about role of vakil so no reason to find his dual role in ceremony suspect. Discrepancies between certificate and registry docu- ment existed because investiga- tor had gone to wrong ward. Uncontradictory evidence had been presented at the hearing that Ward 11 had existed at time of marriage, and then was renumbered. Hannan v. Canada (Minister of Citizenship and Immigration) (Jan. 13, 2009, F.C., Pinard J., File No. IMM-1000-08) Order No. 009/033/070 (8 pp.). REFUGEE STATUS Claim could be re-opened only where breach of natural justice Application for judicial review of Refugee Protection Division's ("RPD") refusal to re-open her refugee claim. Applicant had based claim on political perse- cution in Philippines due to her activism for women's equality. RPD rejected applicant's claim, finding it had been grossly em- bellished. RPD found there was conflicting applicant's claim she was fac- ing charges in Philippines and Interpol evidence. Applicant made unsuccessful judicial re- view application and then later requested RPD re-open claim as she had obtained a certified copy of the warrant for her ar- rest. RPD refused to re-open on the basis the dismissal of the applicant's judicial review ap- plication demonstrated there had been no breach of natural justice. Application dismissed. Section 55 of Refugee Protec- tion Division Rules (Can.), per- mitted a claim to be re-opened only if there had been a breach of evidence between given by RPD sufficient. No evidence that applicant had requested more time to obtain further evidence despite fact that RPD had made it clear that applicant's credibility was a major issue. Relief sought by applicant not available for sup- plementing or bolstering initial evidentiary natural justice, so reasons record; otherwise

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