Law Times

Page 14 OctOber 23, 2017 • Law times www.lawtimesnews.com CASELAW Federal Court of Appeal Administrative Law PREREQUISITES TO JUDICIAL REVIEW Miscellaneous Proper remedy for denial of pay and benefits to armed forces member was action Appellant P was armed forces member, who was released from military due to sexual misconduct. P was released in October 2012, but release was not officially approved until May 2013. P claimed that he should have received regular pay as well as benefits, for pe- riod between release and ap- proval. Respondent Crown set out position that they would not pay P for this time period, in response to letter from P's counsel. P brought applica- tion for judicial review, before Federal Court. Federal Court found that letter was not deci- sion that was properly subject to judicial review. P appealed this judgment to Federal Court of Appeal. Appeal dismissed. Policies in issue did not provide legal rights. Proper remedy for P was to bring action. Federal Court was not asked to convert judicial review application into action. Appeal was dismissed with costs payable to Crown in amount of $1,000. Pearson v. Canada (At- torney General) (2017), 2017 CarswellNat 4521, 2017 FCA 191, Johanne Gauthier J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2531, 2016 CarswellNat 9091, 2016 FC 679, 2016 CF 679, Simon Fother- gill J. (F.C.). REQUIREMENTS OF NATURAL JUSTICE Right to hearing Tribunal erring in ruling it could consult historical treatises that were not in record First Nation filed claim under Specific Claims Tribunal Act alleging Canada breached its fiduciary duty by excluding cer- tain land from Reserve in 1886 and failing to enforce 1915 or- der allocating additional land to Reserve. Tribunal ruled that it could consult historical trea- tises that were not in record to gain historical context, de- spite objection from Canada. Tribunal found beach of Act. Canada applied for judicial re- view of Tribunal's decisions. Applications granted. Given adjudicative nature of decision, court-like process prescribed by Specific Claims Tribunal Rules of Practice and Proce- dure, absence of statutory right of appeal, and importance of decision to parties, parties were entitled to meaningful oppor- tunity to present their cases ful- ly and fairly. Tribunal found gap in evidence with respect to two central issues and failed to iden- tify that gap to parties. Instead, Tribunal referred to three aca- demic texts and 1927 Report of Joint Special Committee with- out particularizing facts it pro- posed to take notice of or issues those facts related to. Canada did not know facts and informa- tion it was required to respond to, and was denied meaningful opportunity to adduce evidence and make responsive submis- sions. Canada v. Akisq'nuk First Nation (2017), 2017 Carswell- Nat 4258, 2017 FCA 175, M. Nadon J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A. (F.C.A.). Federal Court Immigration and Citizenship ADMISSION Application for temporary resident or immigrant visa Decision rejecting humanitarian and compassionate application disclosing insufficient analysis Applicants, father, mother, mi- nor daughter and adult son, were citizens of Zimbabwe who ar- rived in Canada and unsuccess- fully claimed refugee protection. Applicants applied for perma- nent residence in Canada on humanitarian and compassion- ate grounds based on family's establishment in Canada, best interests of daughter and factors respecting country of residence. Senior immigration officer re- fused applications. Applicants applied for judicial review. Ap- plication granted. Standard of review was reasonableness. Officer's decision rejecting hu- manitarian and compassionate application of son disclosed no analysis explaining why posi- tive factors were not sufficient to grant exemption on humanitar- ian and compassionate grounds, and decision was unreason- able. Officer's decision failed to demonstrate any meaningful analysis of what effect return- ing to Zimbabwe would have on daughter and weight that was to be given, and decision was unreasonable. Officer failed to conduct any analysis based on country condition documents or otherwise as to effect upon daughter's education if family were to return to Zimbabwe to apply for permanent residence. Applications were remitted to another officer for reconsidera- tion. Chakanyuka v. Canada (Minister of Immigration, Ref- ugees and Citizenship) (2017), 2017 CarswellNat 1016, 2017 FC 313, Richard F. Southcott J. (F.C.). REFUGEE PROTECTION Appeal or redetermination of claim Language of Refugee Appeal Division failing to demonstrate it conducted independent assessment Refugee claimant was citizen of Sri Lanka. Claimant alleged fa- ther and two uncles were either accused or suspected of hav- ing ties to militant organiza- tion fighting for independence of Sri Lanka's northern region. Claimant claimed to be as- saulted by authorities in 2011 and arrested and beaten in 2014. Claimant f led Sri Lanka in 2015 with help of smuggler, travel- ling through the United Arab Emirates, Ecuador, Brazil, Pan- ama, Peru, Colombia, Mexico, and finally into United States (U.S.), where claimant claimed asylum. Claimant abandoned U.S. claim upon release from immigration-based detention and came to Canada. Claimant made claim for refugee status based on ethnicity, nationality, political opinion, and member- ship in particular social group. Refugee Protection Division (RPD) rejected claim, drawing negative credibility findings from claimant's failure to claim refugee protection in Brazil or Ecuador, abandonment of U.S. claim, discrepancies in U.S. and Canadian applications, and pro- file that would not put claimant at risk upon return to Sri Lanka. Claimant's appeal to Refugee Appeal Division was dismissed for reasons that mirrored those of RPD. Claimant brought ap- plication for judicial review. Application granted. Language of RAD decision failed to dem- onstrate that RAD conducted independent assessment of whether claimant was Conven- tion refugee. While it was un- certain whether independent assessment of claim would have changed outcome of appeal be- fore RAD, independent assess- ment was required. Jeyaseelan v. Canada (Min- ister of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 724, 2017 FC 278, Alan S. Diner J. (F.C.). Tax Court of Canada Tax INCOME TAX Deferred income plans Failure to deduct contributed amounts due to reasonable inadvertence Taxpayer made contributions to his registered retirement savings plan (RRSP), paying attention to deduction limit statement at- tached to his notices of assess- ment. CRA concluded that tax- payer had ongoing cumulative excess amount in respect of his RRSP. Minister assessed taxpay- er for tax under s. 201.4(2.1) of Income Tax Act on RRSP over- contributions and imposed late- filing penalties for failure to file forms required by s. 204.3(1)(a) of Act. Taxpayer appealed. Ap- peal allowed in part. Taxpayer prepared his own income tax returns, using commercial soft- ware program, and mistakenly believed that he had deducted his contributions during two taxation years in which such de- ductions did not appear on his income tax returns. Taxpayer was conscientious taxpayer who was reasonably endeavouring to contribute and deduct appropri- ate amount each year and his failure to deduct contributed amounts was due to innocent 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-7 1 2017-10-18 11:40 AM

• Cover