Law Times

PAGE 16 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 Citizenship but concentrated on only one aspect Application for judicial review decision by officer at Canadian High Commission in Singapore refusing applicant' Officer did not weigh all evidence QUALIFICATIONS Immigration for Canadian citizenship appli- cant made for his adopted son. Applicant and his wife were born in Vietnam and are Canadian citizens. Applicant' born deaf and mute in refugee camp in Hong Kong in 1995. Child was formally adopted in 2008 upon receiving consent of Vietnamese authorities. Child, currently aged 17, had been liv- ing since late 2008 or early 2009 in orphanage in Ho Chi Minh City. Officer determined that child did not meet requirements of s. 5.1(1)(d) of Citizenship Act (Can.), because there were sig- nificant concerns over credibil- ity of information in application, adoption process was begun in 2006 while adopted child was living with his biological par- ents and his elder brother, and evidence demonstrated that pri- mary reason for adoption was to obtain cochlear implant and other medical/social s son was in Canada for adopted child. Application granted. Decision was quashed and application was returned for reconsidera- tion. Officer failed to follow Minister' services ing application. Approach taken by officer led her not to weigh all of evidence before her but to concentrate on only one, thus failing to consider evidence as whole. Tran v. Canada (Minister of Citizenship and Immigration) (Feb. 10, 2012, F.C., Lemieux J., File No. T-863-11) 213 A.C.W.S. (3d) 552 (26 pp.). s Guidelines in assess- s application Application for judicial review of officer's decision refus- ing applicants' application for permanent residence under Convention Refugees Abroad and Humanitarian Protected Persons Abroad category. Principal applicant, and his wife, and their children were citizens of Afghanistan who claimed to Officer failed to provide reasons why applicants would not face persecution in Afghanistan PERSON IN NEED OF PROTECTION Applicants say they fled Afghanistan for Pakistan some- time around 1982 as result of Soviet invasion of Afghanistan. Applicants were sponsored by group of Canadian citizens. Officer decided applicants were resident in Afghanistan and not refugees residing in Pakistan. Officer further found applicants did not have well founded fear of persecution. Application granted. Decision was set aside. Matter was remitted for rede- termination by different immi- gration officer. Officer erred in his credibility finding and failed to provide reasons to find why applicants would not face perse- cution in Afghanistan. Officer' be resident in Pakistan. finding that applicants were not members of either Convention Refugee Abroad class or Country of Asylum class was unreasonable. Hussaini v. Canada (Minister of Citizenship and Immigration) (Feb. 21, 2012, F.C., Mandamin J., File No. IMM-4343-11) 213 A.C.W.S. (3d) 731 (14 pp.). s Application under s. 72(1) of Immigration and Refugee Protection Act (Can.), for judi- cial review of decision of board refusing applicant' Board excluded evidence on sole basis that it contradicted its own information package s applica- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. tion to be deemed Convention Refugee or person in need of protection under ss. 96 and 97 of Act. Applicant was citizen of People' Applicant claimed that he was Christian from Fujian prov- ince. Applicant claimed that he attended underground house church there with his parents. Applicant claimed that his par- ents were arrested and detained. Board determined that appli- cant was not at risk of perse- cution in Fujian province, and that applicant had failed to establish serious possibility of persecution or risk to his life or of cruel and unusual treat- ment or punishment if he were returned to China. Application allowed. Decision was quashed and matter was returned for reconsideration by differently constituted board. Board' s Republic of China. ment of documentary evidence adduced by applicant to sup- port his story was unreasonable. Board excluded evidence on sole basis that it contradicted its own information package, and not because it had any inherent defects. Board did not seem to have looked at documents appli- cant submitted at all. Lin s treat- Citizenship and Immigration) (Feb. 6, 2012, F.C., Russell J., File No. IMM-4437-11) 213 A.C.W.S. (3d) 732 (23 pp.). v. Canada (Minister of Parole Application by prison inmate for judicial review of decision of Appeal Division of National Parole Board that upheld deci- sion of National Parole Board to deny parole. Applicant cur- rently served life sentence for first degree murder. His eligibil- ity for full parole was October 14, 2008. Applicant was citizen of United Kingdom. If he was "Society" required reference to society outside of Canada INELIGIBILITY released on day parole, full parole or unescorted temporary absence he would be deported back to England. Parole was denied because applicant would not be subject to supervision in England. Appeal Division found that Board appropriately focused upon crucial issue as to wheth- er granting parole constituted undue risk to society pursuant to criteria contained in s. 100 through to s. 102 of Corrections and Conditional Release Act (Can.). Those provisions estab- lished purpose and principles that guided Board in parole determinations. Application dismissed. Board and Appeal Division did not err in finding that term "society" contained in s. 100 through to s. 102 was intended to include societies outside of Canada. Applicant did not persuade court of mer- its of excluding societies outside of Canada. "Society" necessarily required reference to any society outside of Canada that would be impacted by inmate' or that would provide insuf- ficient supervision. Parole had to be denied because applicant would be deported to England without mandatory supervision and he would continue to pose risk. s release remained protection of society. Collins Primary General) (Feb. 27, 2012, F.C., Near J., File No. T-343-11) 100 W.C.B. (2d) 464 (18 pp.). v. Canada consideration (Attorney TAX COURT OF CANADA Appeals by employer from assessments under Income Tax Act (Can.). Employer was small non-profit charitable organi- zation. Ruling was made that Services of worker integral to employer' Employment Insurance CONTRIBUTIONS s core function worker was employed in pen- sionable employment within meaning of s. 6(1)(a) of Canada Pension Plan ("CPP") and Employment Insurable ("EI") within meaning of s. 5(1)(a) of Employment Insurance Act (Can.). CRA confirmed deter- mination. CPP and EI assess- ments were made in 2007 and 2009 for years 2006 and 2007 and income tax source deduc- tions assessment was issued in 2009 for 2007 taxation year. Employer terminated worker' service in August 2008. Appeals dismissed. During period at issue, worker was employee and not independent contractor working on his own account. Minister did not err in deter- mining that worker was provid- ing services pursuant to contract of service, and thus, held insur- able and pensionable employ- ment. Stated intention of each party and control factor were not conclusive. Worker genu- inely had no chance of profit or risk of loss. This factor favoured existence of employer-employee relationship. Non-profit organi- zations could not seek to abuse workers by claiming that lack of funds to pay benefits, and work- er' s to avoid categorizing workers as employees. Employer received funding from government orga- nizations and funding agree- ments stipulated that employer was responsible for any and all deductions required to be made from employee' s acceptance of that, was basis for any payments to employees. Business was clearly employers and it was employer, not worker, who ultimately was responsi- ble and accountable to donors with regard to how funds were spent by him. Services of work- er were integral to employer' core function rather than being merely ancillary to its opera- tions. Integration test favoured employee status. M.A.P. (Mentorship, Aftercare, s July 9, 2012 • law Times s income and Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

• Cover