Law Times

Law Times • June 12, 2017 Page 17 www.lawtimesnews.com CASELAW Federal Court of Appeal Municipal Law MUNICIPAL LIABILITY Practice and procedure International Boundary Waters Treaty Act not applying to action against municipal and provincial governments relating to f lood damage Plaintiffs alleged that portions of road allowance in defen- dant municipality were built up to serve as dike that blocked natural f low of water across in- ternational border north into Manitoba and caused extensive f looding and damage to plain- tiffs' land on American side of international border. Plain- tiffs sought injunctive relief and damages, and claims were based on s. 4(1) of International Boundary Waters Treaty Act ("Act"). Defendants, municipal- ity and Government of Mani- toba, were successful in motions to strike out amended statement of claim on basis that Federal Court did not have jurisdiction. Plaintiffs appealed. Appeal dis- missed. Court carefully consid- ered reasons given by motions judge in concluding that Par- liamentary record supported his interpretation of section 4 of Act. He expressed his view as to meaning and intent of what was discussed by Parliament. At paragraph 61 of his reasons, he opined that Parliamentary record supported interpretation that section 4 of Act "only covers downstream situations where there is interference or diver- sion of 'waters in Canada' that would otherwise f low across the border into the United States (the Article II situation) and not Article IV situation". Motions judge did not place undue reli- ance upon those debates or fail to appreciate context in which they occurred. Pembina (County) Water Resource District v. Manitoba (2017), 2017 CarswellNat 1898, 2017 FCA 92, M. Nadon J.A., Donald J. Rennie J.A., and Yves de Montigny J.A. (F.C.A.); af- firmed (2016), 2016 CarswellNat 1967, 2016 FC 618, James Russell J. (F.C.). Public Law SOCIAL PROGRAMS Employment insurance Employee entitled to employment insurance benefits during leave of absence L was employed by bank until October 2013 when she took personal, unpaid leave of ab- sence in order to care for her elderly parents. Written agree- ment between bank and L pro- vided that during her leave, she would continue to accrue service with bank and receive benefits. Agreement further provided that intended purpose of bank's leave policy was to provide em- ployees with time away from workplace to address personal needs and that earning income from other sources over period of leave was not permitted. L made arrangements for her par- ents' care and began applying for jobs at bank without success and her leave of absence ended when her employment was ter- minated. L applied for employ- ment insurance benefits and her claim was antedated so that her benefit period was established effective to October 27, 2013. Employment Insurance Com- mission rejected application for benefits on basis that L had not shown that she was available for work during her benefit period. General Division of Social Se- curity Tribunal concluded that L was entitled to benefits. Deci- sion was confirmed on appeal by Appeal Division. Attorney General applied for judicial re- view. Application for judicial review dismissed. Appeal Di- vision made findings of facts including that L pursued more than 10 possible positions with bank in one year and did all she could to look for work within bank. Appeal Division found that by limiting her job search to positions at bank, L did not un- duly limit her chance of return- ing to labour market so as to be unavailable. While it may have been open to Appeal Division to make another finding, it did not reach unreasonable conclusion. Canada (Attorney General) v. Lavita (2017), 2017 Carswell- Nat 1521, 2017 FCA 82, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.). Federal Court Immigration and Citizenship ADMISSION Immigrants Settlement funds not equating to economic establishment Foreign national (BJ), 53-year- old Indian citizen, applied for permanent resident visa as fed- eral skilled worker, and includ- ed his spouse and two children as accompanying family mem- bers. BJ's self-assessed points were one point short of mini- mum amount for senior manag- ers - financial, communications and other business services, but he submitted he had CAD $3,000,000 in assets and would transfer CAD $1,000,000 when they immigrated. Citizenship and Immigration Canada Pro- gram Support Officer (PSO) informed BJ that his application received positive determination of "eligibility to be processed," but that final decision on his "eligibility to be selected" would be made by visa office. Immi- gration Officer (IO) refused BJ's application because he was not satisfied BJ would be able to become economically estab- lished in Canada. BJ brought application for judicial review. Application dismissed. It was reasonable for IO to state and find that settlement funds did not equate to economic estab- lishment for purpose of obtain- ing permanent resident visa in federal skilled worker class. While settlement funds might be relevant consideration when visa officer makes substituted evaluation under s. 76(3) of Im- migration and Refugee Protec- tion Regulations, they do not, in and of themselves, equate to economic establishment or like- lihood of skilled worker to be- come economically established in Canada. IO's determination was reasonable. While BJ had significant settlement funds, he provided no evidence as to his efforts to seek employment in Canada. IO was entitled to review all factors to determine whether points awarded prop- erly ref lected BJ's ability to eco- nomically establish in Canada. PSO did not purport to make any decision regarding merits of BJ's application. Jain v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 1463, 2017 FC 377, Keith M. Boswell J. (F.C.). REFUGEE PROTECTION Credibility Refugee Protection Division's treatment of evidence was unreasonable Applicant N was Ukrainian citizen, who claimed that he faced persecution due to his bi- sexuality and relationship with another man. N was beaten by other men, causing him to leave for Canada to study in 2015. N returned to Ukraine to move in with his partner, but was again attacked when he tried to save his partner from being attacked. N returned to Canada, and later filed refugee claim. Refugee Protection Division (RPD) ac- cepted likelihood of persecution based on sexual orientation, in Ukraine. However, RPD found N's evidence lacking in cred- ibility. RPD ruled that claim was manifestly unfounded. N applied for judicial review of RPD decision. Application granted. RPD made improper credibility findings, based on phone evidence which it used to determine that N's relationship was not genuine. N clarified evi- dence when asked, but was not asked about details that could have further clarified matter for RPD. RPD made no finding as to authenticity of medical note, but determined that medical evidence was fraudulent. Proper consideration of this evidence could have changed outcome of application. N had reasonable explanation for amending his evidence, but this was not ac- cepted by RPD. As whole, RPD's treatment of evidence was un- reasonable. Nagornyak v. Canada (Minister of Citizenship and Immigration) (2017), 2017 Car- swellNat 680, 2017 FC 215, Cec- ily Y. Strickland J. (F.C.). Transportation AVIATION AND AERONAUTICS Airports and landing areas Transportation Security Clearance Advisory Body and Minister of Transport entitled to deference 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-3 1 2017-06-05 3:34 PM

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