Law Times

Law Times • sepTember 24, 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 FEDERAL Human Rights Legislation DISCRIMINATION Appellant lodged complaint with Canadian Human Rights Com- mission alleging that respon- dent Canadian National Railway had discriminated against her in course of her employment by subjecting her to adverse dif- ferential treatment on basis of disability and sex. Investigator prepared report, concluding that complaint should be dismissed. Commission agreed and dis- missed complaint. Application to Federal Court for judicial re- view of commission's decision was dismissed. Principal issue in both Federal Court and Federal Court of Appeal was adequacy of investigation of appellant's complaint. Appeal was allowed. In not accepting appellant's sub- missions that investigation was inadequate, Federal Court Judge assessed those submissions solely on basis of procedural fairness, without considering whether re- cord raised unreasonable omis- sion in investigation, omission that had to be addressed before commission could make screen- ing decision about appellant's complaint. Failure of Deficiencies in investigation suffi- ciently obvious and important consider that question led him to erroneous conclusion about adequacy of investigation. De- ficiencies in investigation were sufficiently obvious and impor- tant to justify conclusion that in- vestigation did not meet Slattery test for thoroughness. It followed that decision of commission could not stand. Matter must be returned to commission for fresh investigation and new decision. Casler v. Canadian National Railway (May 3, 2012, F.C.A., judge to Sharlow, Pelletier and Stratas JJ.A., File No. A-115-11; A-162-11) Decision at 199 A.C.W.S. (3d) 42 was reversed. 216 A.C.W.S. (3d) 711 (12 pp.). FEDERAL COURT Applicant claimed appeals divi- sion did not send applicant proper confirmation of tax reassessment as promised. Applicant claimed collections division refused to liſt judgment on two of proper- ties owned by applicant despite fact equity in remaining prop- erty would have been sufficient to cover amount owing. Appli- cant argued collections division refused to apply existing credits to 2008 debt as requested and instead applied credits to oldest existing debt. Applicant claimed collection division refused to ad- dress liens on three properties owned by applicant for disputed debts for 2000, 2002, and 2003 taxation ears until debts for 2008 taxation years were settled. Ap- plicant Revised document did not change minister' Administrative Law JUDICIAL REVIEW s decision lief for production of promised amended notice of confirmation. Applicant sought declaratory relief to confirm CRA could not backdate documents. Applicant sought declaratory relief that CRA should acknowledge and follow policy for application of credits. Applicant sought de- claratory relief that alleged 2008 debt was paid and liens and col- lection actions taken in 2010 on basis that 2008 debt was unpaid were in error. Applicant sought declaratory relief that it was not transparent or intelligible exer- cise of discretionary power when officials of collections division made decision without review- ing file. Applications for judicial sought mandamus re- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. review were dismissed. Claim for mandamus and ancillary declar- atory relief with respect to notice of confirmation was dismissed. Once Minister decided to con- firm assessment or reassessment and notified taxpayer in writ- ing of decision, Minister's duties under Income Tax Act (Can.), in relation to reconsideration of as- sessments were completed. Min- ister did confirm reassessment and notified applicant in writing. There was no evidence of prom- ise made on behalf of Minister that new notice of confirmation was to be issued. Revised ver- sion did not serve to backdate notice of confirmation. Revised version was sent to clarify Minis- ter's action and was not intended to replace notice of confirma- tion. Revised document did not change Minister's decision. No breach of procedural fairness resulted from issuance of notice of confirmation. Full repayment of applicant's debt and liſting of judgments on applicant's proper- ties rendered other issues raised in relation to collection division's decisions moot. There remained no live controversies and issues raised in relation to collections division decisions were moot. Court declined to hear and de- cide moot issues raised in ap- plications. Evidence adduced would have failed to establish evidentiary foundation for de- claratory relief sought. Danada Enterprises Ltd. v. Can- ada (Attorney General) (Apr. 12, 2012, F.C., Blanchard J., File No. T-1360-10) 216 A.C.W.S. (3d) 798 (30 pp.). Immigration Application for judicial review of decision of Immigration Divi- sion of Immigration and Refu- gee Board of Canada, wherein Board required to issue removal order on finding of inadmissibility EXCLUSION AND EXPULSION applicant was found to be inad- missible to Canada on security grounds under s. 34(1)(f) of Im- migration and Refugee Protec- tion Act (Can.). Board conse- quently against applicant. Applicant was not challenging board's find- ing that she was inadmissible on security grounds. Rather, appli- cant contended that board did not have jurisdiction to issue re- moval order against her because she had outstanding applica- tion for Ministerial relief under s. 34(2) of act. Applicant was citizen of Pakistan who came to Canada in 1994 and was granted refugee status in 1996. Applicant based her refugee claim on her membership in organization called Mohajir Qomi Movement ("MQM"). Applicant applied for permanent residence in Canada in 1997. In 2007, Minister alleged that applicant was inadmissible to Canada pursuant to s. 34(1) of act on basis that MQM was orga- nization that had engaged in ter- rorism. Applicant filed for Min- isterial exemption pursuant to s. 34(2). On March 24, 2009, appli- cant's application for permanent resident status was rejected on basis that there were reasonable grounds to believe that she was inadmissible pursuant to s. 34 of act in that there were reasonable grounds to believe that applicant was member of organization which had engaged in terrorism. It found applicant inadmissible on security grounds and issued removal order against her. In its decision, board noted that ap- plicant had applied for s. 34(2) exemption but issued removal order had not yet rendered decision. Applicant contended that Im- migration Division did not have jurisdiction to issue deportation order against person found in- admissible under s. 34(1) if there was outstanding application to Minister for exemption under s. 34(2). Applicant contended that both subsections needed to be that Minister considered to determine inad- missibility. Board rejected appli- cant's argument that it could not make determination on admis- sibility until Minister rendered decision. On September 29, 2010, Minister pursued admissibility hearing. Board rendered its de- cision on April 21, 2011. Within application for judicial review of board's decision was filed on May 24, 2011. Application dismissed. Board committed no reviewable error in issuing removal order aſter finding applicant inadmis- sible on security grounds pursu- ant to s. 34(1)(f) of act. There was no temporal aspect to s. 34(2). Nothing in s. 34(2) appears to fetter discretion of Minister as to when he might grant Ministerial exemption. By analogy, there can be no legal requirement on board to wait for decision on s. 34(2) ap- plication before finding claimant inadmissible under s. 34(1), even if s. 34(2) application is outstand- ing. Nothing in statutory scheme makes admissibility finding un- der s. 34(1) subject to Minister's discretionary decision under s. 34(2). Further, s. 45(d) of act provides that Immigration Di- vision "shall" issue deportation order once satisfied that foreign national or permanent resident was inadmissible at conclusion of admissibility hearing. Upon making finding of inadmissibil- ity, board is required to issue re- moval order. Azeem v. Canada (Minister of Citizenship and Immigration) (Apr. 11, 2012, F.C., Blanchard J., File No. IMM-3410-11) 216 A.C.W.S. (3d) 713 (13 pp.). Application for judicial review of denial of refugee claim. Ap- plicant was citizen of China who claimed refugee protection in Canada as Christian because of subjective and objective fear that should he be required to return to Member's implausibility findings erroneously made REFUGEE STATUS PAGE 13 Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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