Law Times

Law Times • February 27, 2017 Page 13 www.lawtimesnews.com CASELAW Federal Court of Appeal Immigration and Citizenship EXCLUSION AND REMOVAL Inadmissible classes There was no duty to provide inadmissibility report Applicant was born in India in 1979, became permanent resident of Canada in February 2007 and, as result of conviction for sexual assault committed in 2008, was sentenced to custodial term of two years less day in June 2013. Canada Border Services Agency officer interviewed applicant in prison and provided him with letter informing him that he may be inadmissible to Canada on ac- count of criminality under s. 36(1) of Immigration and Refugee Protection Act. Officer came to conclusion that applicant was in- admissible to Canada for serious criminality and prepared report under s. 44(1) of Act. Minister's delegate referred applicant's case to Immigration Division (ID) for admissibility hearing. ID con- cluded that offence for which ap- plicant was convicted fell under definition of serious criminality outlined in s. 36(1)(a) of Act and issued deportation order. Appli- cant applied for leave and judicial review of s. 44(1) inadmissibility report and of s. 44(2) referral de- cisions. Both applications were dismissed. Judge was not con- vinced that breach of procedural fairness occurred. Judge certified question asking if duty of fairness required that report issued under s. 44(1) be provided to affected person before case was referred to ID under s. 44(2). Applicant appealed on basis of certified question. Appeal dismissed. Duty of fairness did not require trans- mission of inadmissibility report to affected person before deci- sion was made by Minister or his delegate to refer that report to ID pursuant to s. 44(2), provided that such report was communicated to affected person before hearing of ID. Judge correctly identified applicable standards of review. It was clear that officer's decision under s. 44(1) and Minister's deci- sion under s. 44(2) bore none of hallmarks of judicial or quasi-ju- dicial decision. There were limits to discretion afforded to officers and Minister's delegates despite use of word "may" in wording of ss. 44(1) and (2). Process followed in this case satisfied requirements of procedural fairness. Applicant was afforded kind of participa- tory rights that decisions of this nature warranted. There was no duty to provide inadmissibility report to person concerned prior to referral decision. Judge cor- rectly concluded that process fol- lowed was procedurally fair, that applicant was provided with all participatory rights that his situa- tion entailed, and that respondent was not required to disclose inad- missibility report prior to referral decision. Judge did not commit overriding and palpable error in deciding not to rule definitively on issue in light of fact that deci- sion-makers did in fact consider personal or mitigating factors. Sharma v. Canada (Minis- ter of Public Safety and Emer- gency Preparedness) (2016), 2016 CarswellNat 6814, 2016 FCA 319, M. Nadon J.A., Donald J. Ren- nie J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 6864, 2015 CarswellNat 9020, 2015 FC 1315, 2015 CF 1315, R.L. Barnes J. (F.C.). Labour and Employment Law PUBLIC SERVICE EMPLOYEES Appeal and judicial review Credibility of witnesses lay at heart of Commission's expertise Applicant brought applica- tion for judicial review of dis- missal of unfair labour practice complaint. Applicant sought adjournment to file motion re- questing disqualification of two of three members of panel. Two judges had previously dismissed applicant's application for leave to appeal to Supreme Court in earlier proceeding. Applica- tion dismissed. Applicant failed to explain why he waited until morning of hearing to apply. Composition of Bench avail- able by request two weeks before date of hearing. Commission did not commit error in requir- ing applicant to proceed first as it had control of its procedure. Issue of presentation of evidence was discussed and it was agreed that applicant would present his evidence first. Commission as- sessed evidence and concluded that it was credible, in good faith, and that neither of complaints contained evidence of retaliation against applicant. Commission's conclusion on credibility of wit- nesses lay at heart of its expertise. Pierre c. Clément (2016), 2016 CarswellNat 6742, 2016 CAF 308, Noël C.J., Trudel J.A., and Richard Boivin J.A. (F.C.A.); application for judi- cial review refused (2015), 2015 CarswellNat 1948, 2015 Car- swellNat 1949, 2015 PSLREB 49, 2015 CRTEFP 49, Linda Gobeil Member (Can. P.S.L.R.E.B.). Ontario Civil Cases Business Associations SPECIFIC MATTERS OF CORPORATE ORGANIZATION Shares Application to enforce arbitral awards against shares was dismissed Applicants holding foreign arbi- tral awards against respondent Kyrgyz Republic, and claiming Republic owning shares in re- spondent Canadian company, registered in name of respon- dent Kyrgyz corporation, which was wholly owned by Republic. Applicants seeking to enforce arbitral awards against shares in Canadian company, and apply- ing for declaration that Republic owned shares. Applications judge focusing on agreement on new terms between Republic, Kyrgyz corporation, Canadian company and subsidiaries ("ANT") to find that Republic did not own shares. Applicants appealed. Appeal dismissed. Applications judge's decision to focus on ANT was entirely reasonable, as it was only document capable of proving that there had been transfer. ANT did not establish that Republic had any ownership interest in shares. Restated shareholders' agree- ment was expressly contemplated by ANT, Republic was not party to it, and it explicitly referred to Kyrgyz corporation as registered and beneficial owner of shares. All parties intended Kyrgyz cor- poration to be beneficial owner of shares. Belokon v. Kyrgyz Republic (2016), 2016 CarswellOnt 20453, 2016 ONCA 981, E.A. Cronk J.A., R.G. Juriansz J.A., and L.B. Rob- erts J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 10918, 2016 ONSC 4506, Conway J. (Ont. S.C.J. [Commercial List]). Construction Law STATUTORY REGULATION Building permits Municipality was liable for damages for negligence and negligent misrepresentation Plaintiffs purchased former group home in defendant munic- ipality with intention of opening tourist oufitting business serv- ing Algonquin Park. Plaintiffs intended to convert home into business with overnight residen- tial space for tourists using their services. Municipality was sup- portive and Chief Building Of- ficer ("CBO") S issued building permit requiring new windows, doors, and fire escape signage. New CBO H replaced S and made substantial additional de- mands for upgrades and lowered permitted occupancy rates to below economically viable level. Plaintiffs attempted to list prop- erty for sale but H's replacement was told by municipality not to inspect property so it could not be sold. Plaintiffs successfully brought action for damages for negligence and negligent mis- representation. Municipality ap- pealed. Appeal dismissed. Duty to mitigate required that plain- tiffs take reasonable steps to mit- igate damages. Duty to mitigate, however, did not require injured party to spend money that it did not have, especially when it was conduct of tortfeasor that has left injured party without funds. Court would not interfere with damages award. Carson v. Kearney (Town) (2016), 2016 CarswellOnt 20128, 2016 ONCA 975, Doherty J.A., E.E. Gillese J.A., and Grant Hu- scroft J.A. (Ont. C.A.); leave to appeal refused (2016), 2016 CarswellOnt 6693, 2016 ONSC 2836, E.J. Koke J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 6694, 2016 ONSC 1940, E.J. Koke J. (Ont. S.C.J.). Family Law CHILDREN IN NEED OF PROTECTION Practice and procedure in custody hearings Court of Appeal had no jurisdiction to hear appeal from interlocutory order 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. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-4 1 2017-02-21 10:09 AM

• Cover