Law Times

Law Times • June 11, 2012 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. COURT OF APPEAL Taxation FEDERAL typically provided by municipality Appeal by taxpayer from dis- missal of appeals from reas- sessments. Taxpayer was elected official of Metis Nation of Alberta ("MNAA"), who claimed entitlement INCOME TAX Council did not provide services free allowance under s. 81(3) of Income Tax Act (Can.), as officer of incorporated munici- pality. MNAA incorporated to, inter alia promote cultural, economic, educational, politi- cal and social development of, stand as political representa- tive of and pursue legal and constitutional rights of Metis in Alberta and Canada and ensure participation of disadvantaged Metis groups in develop- ment of Metis Nation. Appeal dismissed. to tax- reviewed evidence concerning objectives, structure, member- ship and activities of MNAA. No error in concluding that because council did not have powers of self-government or provide services typically pro- vided by municipality, taxpayer not entitled to s. 81(3) allow- ance. "Municipality" had to be given ordinary meaning of a community having and exercis- ing powers of self-government and providing services custom- arily provided by such a body. No error in application of geo- graphic standard to definition of municipality. Principle that ambiguities in interpretation of treaties and statutes relat- ing to aboriginal peoples to be resolved in favour of aboriginal peoples inapplicable to Act. Bellrose v. Canada (Feb. 29, 2012, F.C.A., Sharlow, Dawson Judge carefully and Trudel JJ.A., File No. A-472- 10) Decision at 212 A.C.W.S. (3d) 1077 was affirmed. 212 A.C.W.S. (3d) 1071 (11 pp.). FEDERAL COURT Immigration PERSON IN NEED OF PROTECTION Board focused its attention on matters that were Application for judicial review decision of board determin- ing that applicant was neither Convention Refugee nor per- son in need of protection under ss. 96 and 97 of Immigration and Refugee Protection Act (Can.). Applicant was citizen of St. Lucia. Applicant claimed that she feared her ex-boy- friend. Board refused appli- cant' immaterial and irrelevant lacked credibility. Application granted. Matter was referred back to board for reconsidera- tion before different member. Board's decision fell outside scope or range of legally per- missible outcomes given facts and law and was unreasonable. Notwithstanding about s claim on basis that she decision failed to substantively analyze claim. Instead of focus- ing on factual issues that were material to claim for protec- tion, board focused its attention on matters that were immate- rial and irrelevant to claim for protection. Board undertook no analysis of principle basis of claim of risk. Board' applicant's mination that applicant lacked credibility was vague and imprecise. Board placed unrea- sonable emphasis on applicant' s deter- travel documents. Cooper v. Canada (Minister of Citizenship and Immigration) (Jan. 31, 2012, F.C., Rennie J., s These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. File No. IMM-3840-11) 212 A.C.W.S. (3d) 1011 (10 pp.). Application for judicial review of decision of board finding that applicants were neither Convention Refugees nor per- sons in need of protection under s. 97 of Immigration and Refugee Protection Act (Can.). Applicant was citizen on reasons for which applicant was being targeted Board incorrectly focused Applicant alleged that he feared returning to El Salvador because he and his of El Salvador. have been victims of extortion by Mara Salvatrucha ("MS"). Application granted. Matter was referred back to board for recon- sideration before different mem- ber of Board' extended family concerns credibility, Division. Board failed to proper- ly undertake inquiry of whether claimant would face personal risk to his or her life or risk of cruel and unusual treatment or punishment, and whether that risk was one not faced gener- ally by other individuals in or from country. Board was guided by incorrect understanding of meaning of s. 97(1)(b)(ii) of Act. Despite finding that applicant was s Refugee Protection risk of harm, it concluded that risk also affected population at large because all El Salvadorians were at risk of violence from MS. In this way, board incorrectly focused on reasons for which applicant was being targeted, rather than evidence that MS was specifically targeting applicant to the extent beyond that experi- enced by population at large. Lovato v. Canada (Minister of Citizenship and Immigration) (Feb. 3, 2012, F.C., Rennie J., File No. IMM-4766-11) 212 A.C.W.S. (3d) 1018 (8 pp.). subject to particularized SELECTION AND ADMISSION Female child at risk of female Application for judicial review decision by of Pre-Removal Risk Assessment Officer who rejected applicant' genital mutilation manent residence from within Canada based on humanitar- ian and compassionate grounds. Applicant was citizen of Nigeria. Applicant arrived in Canada in 2006, and claimed refugee status based on fear of persecution from father of her unborn twins who she claimed was trying to force her to have abortion. Applicant gave birth to her children in Canada. Applicant' s application for per- dismissed. Officer subsequently rejected applicant' humanitarian and compassion- ate relief. Application granted. It was ordered that application be returned for determination by different officer. Officer' s claim was s claim for sion with respect to best inter- ests of children was unreason- able. Evidence accepted by offi- cer clearly showed that female child was personally at risk of female genital mutilation. Region from which applicant was from indicated that her daughter was at highest risk of female genital mutilation. Oboh v. Canada (Minister of Citizenship and Immigration) (Feb. 8, 2012, F.C., Zinn J., File No. IMM-3151-11) 212 A.C.W.S. (3d) 1021 (7 pp.). s conclu- Application for judicial review decision discrimination against those in individual' Ample evidence of societal s situation refusing applicant's applica- tion to sponsor by First Secretary permanent resident on basis of his being family member. First Secretary was not satisfied that as adult of more than 22 years of age, individual was unable to be financially self-supporting. Individual was citizen of India and had polio. Individual had never worked, was unmarried, individual as had always depended substan- tially on financial support of his parents, and was mentally sound and completed his high school education. Application granted. Decision was quashed and mat- ter was remitted to another deci- sion-maker for redetermination. First Secretary did not deal with uncontradicted country condi- tions that people with disabilities were among most excluded in Indian society. There was ample evidence of societal discrimina- tion against individuals in indi- vidual' would hire him. There were no inconsistencies. There was no inherent contradiction in doc- tors reports. Dhillon v. Canada (Minister of Citizenship and Immigration) (Feb. 9, 2012, F.C., Harrington J., File No. IMM-4887-11) 212 A.C.W.S. (3d) 1023 (7 pp.). s situation, and that no one Parole Prisoner was sentenced to term of imprisonment, followed by ten-year long-term supervi- sion order, for possessing child pornography, accessing child pornography, and sexual inter- ference. As part of long-term supervision, various special conditions were imposed upon prisoner by National Parole Board. Prisoner INMATES' RIGHTS Prisoner was scofflaw who did not come to court with clean hands judicial review of conditions. Prisoner argued that Board failed to impose time limit on special conditions and failed to give adequate reasons with respect to time limit. Prisoner fled without notice and, when found, had in his possession computer containing child pornography. Application dis- missed. Prisoner was not enti- tled to hearing because he was scofflaw who did not come to court with clean hands. Issues applied for PAGE 13 Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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