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Page 14 August 21, 2017 • LAw times www.lawtimesnews.com CASELAW Refugee Appeal Division ("RAD") of Immigration and Refugee Board ("IRB") dis- missed applicant's appeal of decision of Refugee Protection Division ("RPD") of IRB, and confirmed that she was neither Convention refugee nor person in need of protection pursuant to ss 96 and 97 of Immigra- tion and Refugee Protection Act ("IRPA"). Applicant sought judicial review of decision of RAD. Application dismissed. Circumstances in which RAD may draw adverse inference from failure of party to chal- lenge another party's evidence were sufficiently canvassed in existing jurisprudence. No seri- ous question of general impor- tance arose in this case. Manner in which applicant left China and entered United States was central issue before RPD. RAD's approach to issue differed in mi- nor respects from the one taken by RPD, but two tribunals ar- rived at same conclusion: appli- cant's account of her departure from China was not credible. Grounds upon which RAD re- jected applicant's account were not so distinct as to require for- mal notice. RAD's analysis did not therefore give rise to breach of procedural fairness. Liang v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 Carswell- Nat 1720, 2017 FC 388, Simon Fothergill J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Crown's motion for order allowing judicial review and remitting matter back to Tribunal granted Applicant's request for return of Canada Pension Plan benefits led to decision by Social Secu- rity Tribunal - Appeal Division denying him leave to appeal. Applicant applied for judicial re- view. Crown brought motion for order allowing application and remitting matter back to Tribu- nal for redetermination. Motion granted. Crown's motion was accompanied by description of errors it acknowledged were committed by Tribunal in its decision. Applicant argued that remitting matter back to Tri- bunal for redetermination was inefficient use of government resources and that his request for return of benefits should be addressed by court. As Crown argued, if applicant's application was heard and granted, remedy was to send matter back for re- determination and so granting this motion would simply pro- vide same remedy earlier. It was unnecessary to deal with appli- cant's request for production of documents since underlying ap- plication would be granted. Bruce v. Canada (Attorney General) (2017), 2017 Carswell- Nat 1460, 2017 FC 372, George R. Locke J. (F.C.). Tribunal Appeal Division erring in dismissing leave to appeal in face of inconsistent reports Applicant custodian was in- jured in motor vehicle accident in 2011 and had not worked since then. Applicant's applica- tion for Canada Pension Plan (CPP) disability benefits was de- nied. General Division of Social Security Tribunal dismissed ap- peal, finding that applicant had capacity to pursue or retrain for alternative suitable employment but failed to make efforts to do so. Appeal Division of Social Security Tribunal dismissed applicant's application for leave to appeal on basis that there were no grounds of appeal with reasonable chance of success. Applicant brought application for judicial review. Application granted. Matter was remitted to Appeal Division for redetermi- nation. Appeal Division made unreasonable decision by fail- ing to take into account relevant evidence and by misinterpret- ing decision of General Divi- sion. Appeal Division's reasons appeared to demonstrate mis- apprehension of evidence in re- habilitation reports. First report concluded that applicant was functioning at sedentary cate- gory of work and recommended vocational exploration to deter- mine if alternative employment was available. Second report ref lected results of vocational exploration and concluded that applicant's vocational aptitudes fell below requirements of ma- jority of sedentary level occu- pations. In absence of apparent inconsistency in conclusions in two reports, or finding to that effect by General Division, Ap- peal Division's analysis based on such finding by General Di- vision was not within range of possible acceptable outcomes. Appeal Division did not address in reasonable manner appli- cant's arguments that General Division failed to take into ac- count findings in second report. Eby v. Canada (Attorney General) (2017), 2017 Carswell- Nat 2128, 2017 FC 468, Richard F. Southcott J. (F.C.). Canada Pension Plan disability benefits denied as applicant capable of doing work Applicant was injured in mo- tor vehicle accident and, apart from brief period, had not re- turned to work as chef. Appli- cant's application for Canada Pension Plan disability benefits was denied on basis that he was capable of doing other work. On applicant's request for re- consideration, General Divi- sion of Social Security Tribunal held hearing by teleconference and concluded that applicant was not eligible for pension as disability was not severe. Ap- plicant's application for leave to appeal was dismissed by Appeal Division of Tribunal on basis that he did not raise ground of appeal with reasonable chance of success. Applicant applied for judicial review. Application dis- missed. Applicant did not point to evidence that was overlooked by General Division and did not allege that there were any tech- nical difficulties with telecon- ferencing. As General Division had discretion to decide how to hold hearings, applicant's argument that he should have received in person hearing did not constitute valid ground of appeal. Applicant could not rely on medical reports dated after General Division hearing as it was only evidence before Gen- eral Division that was relevant for consideration. Applicant had not identified reviewable error upon which court could intervene. There was medical evidence that applicant could not return to pre-accident work as chef but, as both General Division and Appeal Division noted, there was also medical evidence that he was capable of working in another capacity. Parchment v. Canada (At- torney General) (2017), 2017 CarswellNat 1326, 2017 FC 354, Ann Marie McDonald J. (F.C.). Individual denied Canada Pension Plan disability benefits as not having severe and prolonged disability Individual was involved in mo- tor vehicle accident and claimed he began experiencing medical troubles after. Individual was dismissed from his last job in 2010 when it seemed he could not continue fulfilling require- ments of position and his em- ployer could not accommodate him. Individual first applied for Canada Pension Plan (CPP) dis- ability benefits without success, and reconsideration produced second negative decision. Social Security Tribunal General Di- vision (GD) considered individ- uals' work history and health records and found individual made no attempts to work after his last interview in 2010. Based on investigative findings, GD was of view there was no dem- onstration of any significant abnormalities that would have suggested individual was in- capable of working. Therefore individual did not meet criteria under s. 42(2)(a)(i) of Canada Pension Plan Act. GD held in- dividual did not have "severe and prolonged" disability as re- quired to access CPP disability benefits. Appeal Division (AD) was satisfied appeal of GD de- cision did not have reasonable chance of success. Individual brought application for judicial review of AD's refusal to grant him leave to appeal. Applica- tion dismissed. It was very dif- ficult to ascertain what error of law was; in fact, each error of law was what individual considered to be inappropriate finding of fact, disagreement with finding made. Recasting of questions of law as errors of fact would have made task of AD not simply to assess whether individual had chance of successfully argu- ing that GD erred in law, but whether GD made perverse or capricious error or made its decision without considering evidence presented. Grounds of appeal did not permit AD to reweigh evidence, nor was that role of Court on judicial review. AD's decision was reasonable in finding GD made no error in weighing two self-referral reports against other evidence; there was nothing capricious or perverse. GD faced conf licting medical evidence, both on in- dividuals' mental and physical conditions, and it was respon- sible for reviewing evidence and choosing which reports it accorded more or less weight. Individual's argument boiled down to argue that evidence ought to have been reweighed in order to reach different con- clusion, not that conclusion reached was capricious. Indi- vidual did not show findings of fact of GD were capricious and perverse such that AD was un- reasonable in its conclusion that he had no reasonable chance of success. Rouleau v. Canada (Attor- ney General) (2017), 2017 Car- swellNat 2524, 2017 Carswell- Nat 3015, 2017 FC 534, 2017 CF 534, Yvan Roy J. (F.C.). Tax Court of Canada Public Law SOCIAL PROGRAMS Employment insurance Individual found not to be engaged in pensionable and insurable employment while operating fish market Payer was sole proprietorship operating in fishing industry as buyer and seller of lobster and crab –Payer and individual were not related. Individual operated his own fish market from his yard, selling lobsters and clams. Individual was competitor of payer. Minister informed individual that from April 25 to April 29, 2011, indi- vidual was employed by payer under contract of service and was engaged in pensionable and insurable employment in respect of which he had 40 in- surable hours and $600 of in- surable earnings, and that for contested periods, individual was not employed by payer and not engaged in pensionable and employable insurance. In- dividual appealed. Appeal dis- missed. Payer's activities as em- ployer began in 2009 and at that time, payer was suspected and ultimately convicted of issuing falsified records of employment for purpose of qualifying indi- viduals for employment insur- ance benefits they were not en- titled to receive. Individual was not employed by payer during contested periods. Individual's answers were evasive as to du- ties performed for payer during contested periods. He called no witnesses to corroborate al- legation that he was employed by payer during contested pe- riods. Negative inference was drawn from fact that payer did have actual employees during contested periods and none of these employees were called as witnesses to confirm testimony. Individual appeared to suffer from convenient memory laps- es. Individual was not credible or reliable witness. Doucet v. M.N.R. (2017), 2017 CarswellNat 2602, 2017 TCC 102, Robert J. Hogan J. (T.C.C. [Employment Insur- ance]). Tax INCOME TAX Administration and enforcement Investigation into judge's conduct specifically connected to appeals was cause for recusal Case management judge on ap- peals viewed news programme regarding appeals. News pro- gramme indicated that spe- cific law firm was involved in appeals and also referenced conference reception hosted by law firm, which case manage- ment judge brief ly attended. Case management judge sub- sequently reviewed his files and discovered single reference to that law firm in notices of ap- peal. After that discovery, judge ceased all further action as case management judge for appeals. Preliminary investigation had been commenced by Canadian Judicial Council. Judge made motion for his own recusal. Judge recused. Matters were to be returned to Chief Justice of Tax Court of Canada to assign new case management judge to appeals as deemed appropri- ate. Where there is investiga- tion into judicial conduct spe- cifically connected to appeals, judge's purpose as servant of Tax Court of Canada and peo- ple of Canada in appeals had been questioned. This was jus- tification and cause for recusal. Possibility that judge could be asked to rule on any matters in dispute in appeals was further reason for recusal. Immediate recusal would not harm pres- ent process as there was no ap- parent urgent need of parties for immediate services of case management judge. Cooper v. R. (2017), 2017 CarswellNat 657, 2017 TCC 36, Randall S. Bocock J. (T.C.C. [General Procedure]). INCOME TAX Foreign income Mutual agreement procedure pursuant to Tax Convention binding on Minister of National Revenue Company sold approximately 50 percent of its annual rock salt production to related cor- poration resident in United States. Company determined it understated its income from

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