Law Times

Law Times • June 5, 2017 Page 13 www.lawtimesnews.com CASELAW Federal Court of Appeal Civil Practice and Procedure PARTIES Vexatious proceedings / Abuse of process Respondent declared vexatious litigant Applicants applied for order declaring respondent AO vexa- tious litigant under section 40 of Federal Courts Act. Application allowed. AO was declared vexa- tious litigant. He was not to insti- tute new proceedings, whether acting for himself or having his interests represented by another individual Court, except by leave of Court. In roughly three years, AO has brought at least 47 matters in various courts. In this court, he had brought 18, most of which have been dismissed summarily. As for those not dis- missed, pleadings, motions and affidavits contained many scan- dalous and irrelevant allegations and it was not possible to see any merit in them. AO f louted direc- tions and orders of court. Canada v. Olumide (2017), 2017 CarswellNat 610, 2017 FCA 42, David Stratas J.A. (F.C.A.). Public Law SOCIAL PROGRAMS Employment insurance Applicant retiring early to retain benefits not voluntarily leaving employment without just cause Applicant's employer gave notice of its intent to discontinue health and dental insurance benefits for new retirees and advised her that she had to retire by speci- fied date to retain her retirement coverage. Applicant retired. Ap- plicant's application for employ- ment insurance benefits was denied. Social Security Tribunal General Division (SST-GD) held that applicant voluntarily left her employment without just cause within meaning of ss. 29 and 30 of Employment Insurance Act. Applicant's appeal was allowed by Social Security Tribunal Ap- peal Division (SST-AD). Crown applied for judicial review. Ap- plication dismissed. SST-AD's decision was not unreasonable, as it fully explained basis for its determination that applicant's need to maintain coverage for herself and husband provided just cause for retiring and that roll back of coverage was akin to significant modification in wag- es or salary. Result reached was not unjustified as there was rea- sonable basis for conclusion that SST-GD made reviewable error in failing to properly apply appli- cable test under ss. 29 or 30 of Act to applicant's situation. Given multiple medications required by applicant and husband as well as their significant dental needs, conclusion was not unreason- able. SST-AD was not required to refer to cases cited by Crown as determination of just cause was largely fact-specific inquiry and SST-AD applied correct law. On facts of applicant's case, result reached by SST-AD was not un- reasonable. Canada (Attorney General) v. Hong (2017), 2017 Carswell- Nat 718, 2017 FCA 46, Stratas J.A., Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.). Transportation RAILWAYS Operation National railway's obligation to provide railcars triggered by bumper crop Company ordered railcars from national railway company to handle crops harvested and de- livered to company. Bumper crop was harvested in 2013-2014, and winter 2014 was extremely cold, and railway company de- livered only some cars to com- pany. Company complained to Canadian Transportation Agen- cy alleging that national railway company failed to receive, carry and deliver traffic ordered for carriage and violated s. 113(1) of Canada Transportation Act. Agency found in company's fa- vour and railway company was ordered to provide railway cards that company had asked for. Railway company appealed. Ap- peal dismissed. Based on record before it, including bumper crop of 2013-2014 and availability of grain, agency found that on bal- ance of probabilities, company had legitimate demand for ser- vice, or it would have had grain to ship had it received cars it or- dered. Under s. 113(1) of Act, this triggered national railway's obli- gations. Based on record before it, agency concluded that nation- al railway did not fulfil its obli- gations and that national rail- way breached its level of service obligations to company during complaint period. Agency did not reach unreasonable result. Agency found that railway com- pany was justified in some delay in delivering cars to company during complaint period but that railway company was not completely relieved of its service obligations concerning traffic company had offered for car- riage. Agency studied national railway's service over complaint period and found that propor- tion of cars waybilled to cars or- dered decreased over time. Na- tional railway could not justify indefinite service delay for what turned out to be 40 per cent of company's traffic. Agency con- sidered issue of whether carrier fulfilled its obligations globally. Agency reached factually suf- fused conclusions founded upon evidentiary record and readings of s. 113(1) of Act consistent with acceptable interpretation of pro- vision and Supreme Court of Canada decision. Agency's deci- sion was reasonable. Canadian National Rail- way v. Emerson Milling Inc. (2017), 2017 CarswellNat 1434, 2017 FCA 79, Johanne Gauth- ier J.A., David Stratas J.A., and Mary J.L. Gleason J.A. (F.C.A.). Federal Court Immigration and Citizenship REFUGEE PROTECTION Appeal or redetermination of claim Findings of Refugee Appeal Division denying application for judicial review entitled to deference Applicant, citizen of Kyrgyz- stan, claimed refugee protection based on fear of violence from state and non-state extortionists that had resulted in him being beaten and hospitalized three times. Refugee Protection Divi- sion (RPD) found applicant's sto- ry was not credible and rejected claim. Applicant appealed, sub- mitting new evidence consist- ing of letter from witness to, and hospital records arising from, attack on wife and son. Refugee Appeal Division (RAD) found evidence did not raise serious is- sue as to credibility, denied oral hearing and affirmed decision of RPD. On application for judicial review, court found RAD had erred in its assessment of evi- dence by focusing on what it did not as opposed to what it did say and ordered redetermination be- fore different panel. Second pan- el of RAD found new evidence was not credible, denied oral hearing and again affirmed deci- sion of RPD. Applicant brought further application for judicial review. Application dismissed. RAD's findings in regard to new evidence, including with respect to credibility, were entitled to sig- nificant deference. Such findings were not reached in vacuum but on totality of evidence which, in this case, included admittedly fraudulent claim made abroad. RAD's findings were reasonable in circumstances and rendered decision with respect to oral hearing reasonable. Belek v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 649, 2017 FC 196, Alan S. Diner J. (F.C.). REFUGEE PROTECTION Elements of protected refugee status Claimants' application for refugee protection denied in absence of well-founded fear of persecution Refugee claimants were father, mother, and three children who were stateless Palestinians hold- ing Lebanese travel documents. Father and children had been born in Kingdom of Saudi Ara- bia while mother had been born in United Arab Emirates before moving to Saudi Arabia when she married father. After father lost his job in Saudi Arabia and had to leave, claimants went to United States before coming to Canada. Claimants unsuc- cessfully applied for refugee protection. Claimants brought application for judicial review. Application dismissed. Finding of Refugee Protection Division (RPD) of Immigration and Ref- ugee Board that claimants had not established well-founded fear of persecution in Saudi Ara- bia, and that they were not per- sons in need of protection, was reasonable. Father's evidence was that he had no problems in Saudi Arabia other than losing his job. RPD was not required to consider whether claimants would be at risk in Lebanon. In absence of well-founded fear of persecution, fact that claimants 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. 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