Law Times

CaseLawLaw PAGE 14 FEDERAL COURT OF APPEAL Environmental Law ENFORCEMENT Public consultation under s. 21 of Canadian Environmental Application judge erred in law in allowing application for judicial review and in ordering public consultation be held on proposed scope of corporate appellants' an- ticipated mine and milling opera- tion to be subjected to environ- mental assessment pursuant to s. 21 of Canadian Environmental Assessment Act. Section 21 did not come into operation in case at bar since project "as scoped" in final scoping decision was not prescribed in Comprehensive Study List Regulations (Can.). Public consultation under s. 21 was therefore not requirement. Miningwatch Canada v. Can- ada (Minister of Fisheries and Oceans) (June 13, 2008, F.C.A., Sexton, Evans and Desjardins JJ.A., File No. A-478-07; A-479- 07) Appeal from 161 A.C.W.S. (3d) 86; 33 C.E.L.R. (3d) 1; 318 F.T.R. 160 allowed. Order No. 008/253/107 (23 pp.). Assessment Act was not required FEDERAL COURT Immigration EXCLUSION AND EXPULSION Applicant who refused to serve in army would suffer irreparable harm if returned to United States Applicant, citizen of United States, came to Canada in 2006, claiming refugee status. cant's claims resulted from his refusal to serve in United States army in Iraq. Appli- missed in 2007. Leave for judicial review was denied. PRRA was decided negatively in 2008, and his H&C application was refused on same day. Applicant granted stay of removal order pending judicial review of both decisions. Officer failed to accept and assess new evidence presented. Claim was dis- ticular, situation had drastically changed in 2007 and 2008, and crackdown on deserters was es- tablished whereby were no longer dealt with administratively and merely received less than honour- able discharges, but instead were subject to prosecution and con- viction by military tribunals re- sulting in prison sentences of up to five years. In par- Evidence showed that, if returned to U.S., applicant would suffer irreparable harm he had described. Glass v. Canada (Minister of Citi- zenship and Immigration) (July 17, 2008, F.C., Frenette D.J., File No. IMM-2552-08) Order No. 008/224/088 (20 pp.). IMMIGRATION OFFICIALS Recall of permanent resident card was upheld on review Immigration Officer ordered recall and cancellation of per- manent resident card issued to applicant on basis that card was issued in error. tained in officer's decision were sufficiently clear and did not constitute breach of procedural fairness. No determination had ever been made regarding ap- plicant's present residency status. No procedural requirements were required before deciding to recall, cancel, and render null applicant's permanent resident card on basis of administrative error, other than had already been extended to ap- plicant. Regulations gave express authority to department to recall permanent resident card. Officer did not act beyond his jurisdic- tion by recalling, canceling and rendering void applicant's per- manent resident card in this case. Judicial review dismissed. Salewski v.Canada (Minister of Citizenship and Immigration) (July 23, 2008, F.C., Russell J., File No. IMM-4769-07) Order No. 008/224/075 (25 pp.). Reasons con- Application for judicial review of decision of Immigration Divi- sion of Immigration and Refugee Board finding applicant inadmis- sible and issuing removal order. Applicant was citizen of Pakistan and active member of MQM or- ganization. Board found orga- nization a terrorist organization based on review of documentation reporting incidents of murder, abduction and torture and after refusal to accept expert evidence critical of documentary evidence. Application dismissed. INADMISSIBLE AND REMOVABLE CLASSES It was open to Board to find that MQM organization was terrorist organization. clearly stated definition of terror- ism and reviewed acts reported by documentary evidence which met the definition. Open to board to conclude that actions and inten- tions of different factions of an organization can be impugned upon organization as a whole and court will not re-weigh evidence presented to a board on a judicial review. Board in any acts of terrorism not an issue as applicant need only be a member of organization which Complicity of applicant November 3, 2008 • Law Times COURT DECISIONS 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: ainmaker_LT_June2_08.indd 1 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. there are reasonable grounds to believe engages or will engage in acts of terrorism. Board clearly considered and assessed expert evidence and did not fail to ex- plain why testimony not accept- ed. Open to board to prefer some evidence over other. Courts have recognized reliability of informa- tion obtained from independent non-governmental organizations. Decision met standard required to show reasonable grounds for believing the organization en- gaged in acts of terrorism. Deci- sion was justified, transparent and intelligible and was defensible with respect to facts and law. Jilani v. Canada (Minister of Citi- zenship and Immigration) (June 23, 2008, F.C., Beaudry J., File No. IMM-4056-07) Order No. 008/191/013 (13 pp.). Application for judicial review of decision by Refugee Protec- tion Division of Immigration and Refugee Board finding applicant neither a Convention refugee nor person in need of protection. Applicant was citizen of Ukraine who claimed persecution based on sexual orientation includ- ing banishment by family and church, prevention from enrol- ment in university, dismissal of partner by university, threatening letters, assaults including assault on partner resulting in death and failure of police to pursue reports once homosexuality known. Ap- plicant sought refugee status af- ter learning of partner's death in Ukraine while visiting relatives in Canada. Application granted. Board conclusion that applicant not credible was unreasonable as it was based on peripheral in- consistencies rather than central elements of claim. Board implic- itly accepted applicant was ho- mosexual and did not challenge claims of assaults, lack of interest by police relating to assaults, or circumstances of death of partner, and did not offer evidence to sup- port conclusions about particular peripheral inconsistencies. Board erred in alternative finding that state protection available and in further alternative that there was internal flight alternative available in Kiev. PERSON IN NEED OF PROTECTION Board did not fully address nature of applicant's fear of persecution on documentary evidence favour- ing its conclusion that state pro- tection available without provid- ing explanation for discounting applicant's testimony regarding attempts to seek protection. Board selectively relied just group based in applicant's home town. Tsyhanko v. Canada (Minister of Citizenship and Immigration) (June 30, 2008, F.C., Mandamin J., File No. IMM-4904-07) Or- der No. 008/198/072 (11 pp.). Ukraine Citizen applied for refu- gee status alleging no protection from the Ukraine police who have ties to drug dealers that had beat him. First tribunal ("RPD") submitted an AIF to the Immi- gration and Refugee Board's Spe- cific Information Research Unit ("SIRU") and obtained informa- tion that documentation submit- ted by applicant, to prove medi- cal treatments necessitated by the alleged beatings, were forged/ false. Hearing adjourned to al- low time for verification of appli- cant's subsequent allegation that SIRU information was the result of further intimidation tactics by Ukraine police. REFUGEE STATUS Reviewing court could only intervene if finding of fact unreasonable or in breach of s. 18.1(4)(d) Federal Courts Act (Can.) not submit any further indepen- dent evidence to establish case. Second tribunal ("RPD") refused to be responsible for obtaining extraneous verification of appli- cant's allegations. Applicant did findings are findings of fact. Re- viewing court can only intervene if finding of fact is unreason- able or in breach of s. 18.1(4) (d) Federal Courts Act (Can.). Applicant must submit proper evidence to support claim and cannot rely on RPD to obtain the necessary independent veri- fication of his case. Matvisyk v. Canada (Minister of Citizenship and Immigra- tion) (June 30, 2008, F.C., Le- mieux J., File No. IMM-4908- 07) Order No. 008/198/073 (23 pp.). the applicant's testimony lacked credibility because of omissions and inconsistencies, and that the documents he submitted were not credible. RPD found PD's credibility CIVIL CASES Damages ONTARIO finding an internal flight alterna- tive available, board did not fully address nature of applicant's fear of persecution at hands of ultra- nationalists generally rather than In www.lawtimesnews.com Plaintiff by counterclaim sought damages either by way of a claim to disgorge benefits wrongly ac- quired by defendants or by claim for damages to restore plaintiff to position it would have been in had breach not occurred. Plaintiff sought to await judge's GENERAL Plaintiff was not required to elect one of two heads of damages decision on trial and if success- ful choose higher of damages awarded. Findings of fact at trial could affect quantum of dam- ages awarded under both claims. Plaintiff not required to elect which of two heads of damages, accounting for profit or for loss of profit, it seeks prior to sub- mission and judgment. Plaintiff should be compensated based on higher of the two remedies. Islip v. SSI Equipment Inc. (June 30, 2008, Ont.S.C.J., Tucker J., File No. 02/6669) Order No. 008/189/031 (6 pp.). Employment Plaintiff was terminated from her position as office manager after 23 years service with defen- dant. Defendant's allegation of gross misconduct was not made out. Defendant was attempting to justify decision to terminate plaintiff for just cause to avoid paying her severance when real motive was to reorganize corpo- rate structure and acquire Sec- retary/Treasurer with different skill set than plaintiff. Plaintiff was vulnerable employee because of her age, fact that she learned her skills on job and that she had spent virtually all of her working life at one employer. WRONGFUL DISMISSAL Long-term office manager entitled to maximum notice period awarded maximum amount of notice of 24 months, further 23 weeks of severance, and ad- ditional 2 months for bad faith conduct of defendant. Brien v. Niagara Motors Ltd. (Aug. 20, 2008, Ont.S.C.J., Lafreniere J., File No. 45,591/04) Order No. 008/239/084 (100 pp.). Plaintiff Family Law CUSTODY Children were ordered returned to England Application for immediate return of children to habitual residence. Parties were same sex couple co- habitating between 1994 and 2003. Parties adopted two chil- dren together. Respondent trav- elled from England to Canada with children for stated purpose of holiday. Respondent informed applicant that she was not return- ing with children. granted. Children were ordered to be returned to England. Re- spondent's removal and reten- tion of children from England was wrongful within meaning of Hague Convention. Application no evidence that children's medi- cal needs could not be met in England. There was that children were harassed by applicant. Return to status quo It was not established

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