Law Times

Page 14 June 19, 2017 • Law Times www.lawtimesnews.com Federal Court of Appeal Immigration and Citizenship CITIZENSHIP Application for grant of or retention of citizenship Citizenship application placed on hold pending cessation proceedings Applicant Sri Lankan citizen was granted refugee protection and became permanent resident. Ap- plicant returned to Sri Lanka for extended stays. Minister of Citi- zenship and Immigration com- menced cessation proceedings against applicant under s. 108(2) of Immigration and Refugee Protection Act (IRPA) on ba- sis that applicant had re-availed himself of Sri Lanka's protection. Applicant applied for Canadian citizenship, but processing of that application was suspended due to ongoing cessation proceedings. Applicant's application for man- damus order requiring process- ing of citizenship application was granted with award of costs. Min- ister appealed. Appeal allowed. If there was final determination that applicant's refugee protec- tion had ceased, then he would lose permanent residence and be- come inadmissible under IRPA. Minister had power under s. 13.1 of Citizenship Act to place hold on citizenship applications where there were admissibility concerns under IRPA and both ss. 40.1 and 44 of IRPA labelled cessation as admissibility issue. Minister's in- terpretation to effect that s. 13.1 of Citizenship Act allowed him to suspend processing of citizen- ship application for permanent resident whose refugee status had been challenged for cessa- tion was reasonable and ref lected Parliament's intention. Minister did not have public legal duty to continue processing applicant's application notwithstanding that cessation proceedings had yet to be determined and so test for mandamus was not met. While costs awards were highly discre- tionary decisions, intervention was warranted. Fact that conf lict- ing jurisprudence existed at time that application was suspended undermined application judge's finding that Minister acted in bad faith. Minister acted legally and there was no basis in record for finding of bad faith or subterfuge. Canada (Minister of Citi- zenship and Immigration) v. Nilam (2017), 2017 CarswellNat 696, 2017 FCA 44, Near J.A., Richard Boivin J.A., and Rennie J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 3621, 2016 FC 896, James Russell J. (F.C.). Tax INCOME TAX Administration and enforcement Canada Revenue Agency not requiring taxpayer's consent to copy records In April 2014, Canada Revenue Agency (CRA) advised taxpayer, by letter, that his income tax re- turns for 2006 to 2010 taxation years, which were under objec- tion, and his returns for 2011 and 2012 taxation years, which were not yet assessed, were under re- view. CRA listed specific records it required to carry out audit. Taxpayer would only allow one auditor to enter premises and no other person. CRA decided not to proceed with audit at that time as it was not confident that tax- payer would allow audit to pro- ceed without interference. CRA then notified taxpayer, by letter that s. 231.1 of Income Tax Act provided it with authority to in- spect requested records and that taxpayer failed to comply with CRA's request to submit records. CRA advised that failure to sub- mit records requested by specified date would result in CRA seek- ing compliance order pursuant to s. 231.7 of Act. Federal Court Judge ordered taxpayer to provide information and documents pur- suant to s. 231.7 of Act. Taxpayer appealed. Appeal dismissed. There was no reviewable error in Judge's finding that taxpayer did not provide required access, as- sistance or information sought by CRA under Act. Contrary to tax- payer's understanding, CRA did not require taxpayer's consent to copy his records. Taxpayer could not dictate how CRA conducted audit or frustrate CRA's ability to carry out its statutory duties by refusing entry to second auditor or insisting on videotaping audit process. There were no grounds to set aside compliance order. Beima v. Minister of Na- tional Revenue (2017), 2017 CarswellNat 1805, 2017 FCA 85, Stratas J.A., D.G. Near J.A., and de Montigny J.A. (F.C.A.). Transportation AVIATION AND AERONAUTICS Interpretation of aeronautics legislation Airport authority assumed airline's obligations towards passengers with disabilities Adding parties. Passenger re- turned to Canada on f light with airline, having requested as- sistance as she was visually im- paired. Passenger was greeted with wheelchair but only needed person to walk with her, for which she had to wait 45 minutes. Pas- senger filed complaint with Ca- nadian Transportation Agency and identified airport author- ity as disability service provider. Agency dismissed airport au- thority's request it add airline and disability services provider as respondents. Agency found air- port authority assumed airline's obligations towards passengers with disabilities based on its con- tract with airline and manual, and that airport authority could not escape statutory obligations by relying on contractor to pro- vide disability services. Airport authority brought application for judicial review of agency's deci- sion. Application dismissed. It was not yet known why passenger did not receive services requested; there could be policy issue or may have simply been miscommuni- cation or error. There was likely communication between airport authority, airline and disability service provider as result of this incident, and by not adding par- ties as requested, agency made its own job more difficult and im- posed burden on airline author- ity it would not otherwise have. It was premature to find proce- dural fairness had been breached as hearing and final decision had not occurred. Agency came to conclusion on airport authority's obligations by reference to con- tracts and Personnel Training for the Assistance of Person with Dis- abilities Regulations. Conclusions on contract were ones of fact and law that were not reviewable on appeal. Agency did not yet reach final conclusion on interpreta- tion of s. 4 of Regulations; rather, it made provisional conclusion for purpose of interlocutory motion. Greater Toronto Airports Authority v. Canadian Trans- portation Agency (2017), 2017 CarswellNat 1214, 2017 FCA 64, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.). Federal Court Immigration and Citizenship REFUGEE PROTECTION Credibility Refugee claim denied as applicant failing to establish identity and citizenship Applicant claimed he was citizen of Eritrea and that he feared per- secution and mandatory military service in Eritrea. Applicant tes- tified he first travelled to United Kingdom and claimed asylum, which was rejected. Applicant tes- tified he remained unlawfully in United Kingdom until his arrival in Canada nine years later, which contradicted basis of claim form that stated he arrived in Canada directly from Eritrea. Refugee Protection Division (RPD) found that that applicant failed to es- tablish his identity or that he was citizen of Eritrea, that his refugee claim did not have credible basis, and applicant was found not to be convention refugee or person in need of protection. Applicant applied for judicial review. Ap- plication dismissed. Standard of review was reasonableness, and RPD's findings were reasonable in circumstances. RPD's deter- mination that applicant lacked credibility with respect to his time in United Kingdom was reasonable. Applicant lied on his basis of claim form to obtain entry into Canada, he failed to produce any documents from United Kingdom to confirm his identity, and he failed to explain how he supported himself while in United Kingdom. Applicant's witness was not able to testify as to applicant's purported nation- ality, and RPD acted reasonably when it gave witness' testimony limited weight. RPD's decision to give documents applicant pro- vided that apparently originated in Eritrea little weight was not unreasonable. RPD considered all evidence before it, including applicant's knowledge of Eritrea and his f luency in local language, in determining whether appli- cant established his identity and that he was Eritrean national. Based on overwhelming incon- sistencies and lack of evidence ac- counting for nine years in United Kingdom, it was reasonable for 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. CASELAW Complete the survey online at canadianlawyermag.com/surveys and make your picks. It's time to rank… THE TOP 10 ONTARIO REGIONAL LAW FIRMS SURVEY IS OPEN UNTIL JULY 4TH Untitled-6 1 2017-06-13 2:25 PM

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