Law Times

Law times • OctOber 29, 2012 he was homosexual. Each piece of evidence when viewed in isolation perhaps did not over- come concerns about whether applicant was gay. Complete picture showed that applicant was regarded as gay by man he lived with, that he had been ob- served with a guy believed to be his "girlfriend", that he had continued his gay community in Toronto and has shared his coming out story at an organization that assists gay people and was wanted by Nigerian police who believe he is gay. Officer did not look at complete picture and this was reviewable error. Ogunrinde v. Canada (Minister of Public Safety and Emergency Preparedness) (June 15, 2012, F.C., Russell J., File No. IMM- 6711-11) 217 A.C.W.S. (3d) 668 (18 pp.). activities with Application for judicial review of decision of pre-removal risk assessment officer that there was no more than mere possibility that applicant would be at risk of persecution in Democratic Republic of Congo (DRC) and no serious reason to believe he would be in danger of torture, a threat to his life or cruel and unusual treatment or punish- ment. Refugee claim rejected on basis of credibility concerns. Officer noted that applicant al- leging same fears as presented at initial refugee hearing, that documents submitted relating to violence and political situ- ation in DRC did not address applicant' Unclear whether consideration given to ethnic risk did not allow officer to refute board' ibility of allegations. Applica- tion allowed. Fresh allegations as to ethnic dimension of risk did refer to some ethnic-based issue based on region where ap- plicant was from and his mem- bership in Luba tribe. Unclear whether officer truly consid- ered or had reasons for disre- garding such allegations as not being supported by documents submitted. Unclear whether proper considerations given to whether instability in eastern region had any direct implica- tions of applicant' s specific situation and s findings regarding cred- given officer's misstatement that s situation applicant was from Kinshasa as opposed to Lubumbashi in eastern region. Kabeya v. Canada (Minister of Citizenship and Immigra- tion) (June 6, 2012, F.C., Near J., File No. IMM-5938-11) 217 A.C.W.S. (3d) 669 (9 pp.). Application for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board that ap- plicant was not a convention refugee or person in need of protection. Board concluded that applicant had not leſt Democratic Republic of Congo Implausible that applicant would be able to escape while travelling on diplomatic passport REFUGEE STATUS fleeing political persecution but had instead travelled on his dip- lomatic passport pursuant to valid United States entry visa for purpose of attending con- ference. Applicant had fabricat- ed entire story of detention and torture. Implausible that appli- cant would be able to travel on diplomatic passport if wanted police notice was outstanding. Equally suspicious that appli- cant had arranged to obtain new birth certificate only weeks before departure. Application dismissed. Applicant did not se- riously challenge implausibility of coincidences even thought they went to heart of his claim. That applicant would happen to have valid United States visa for precise period during which he alleged to have experienced persecution simply fell outside realm of what could reasonably be expected in circumstances. Reasonable for board to find it implausible that applicant would be able to escape while travelling on his own diplomat- ic passport. Ntula v. Canada (Minister of Citizenship and Immigration) (June 7, 2012, F.C., Mactavish J., File No. IMM-7804-11) 217 A.C.W.S. (3d) 679 (9 pp.). Application for judicial review of decision of Immigration Di- vision of Immigration and Refu- gee Board that applicant was in- admissible to Canada based on criminality and organized crim- inality. Applicant pled guilty in 2005 to one count of partici- pating in criminal organization known as Malvern Crew. Crown counsel in letter regarding plea agreement indicated that CBSA did not have any intent to initi- ate any enforcement action "at this time". Applicant in 2006 was convicted of two counts of pos- session for purposes of traffick- ing. Board accepted that no rep- resentation was made by CBSA that enforcement action would never be taken and dismissed legitimate expectations argu- ment. Application dismissed. Requirements for establishing legitimate expectations not pres- ent. Letter was unclear, ambigu- ous and qualified. Statement that enforcement action would not be taken at this time did not pre- clude possibility of such action in future particularly if other of- fences subsequently committed. Board did not rely solely on find- ings of other courts or tribunals to determine that Malvern Crew constituted criminal organiza- tion. Judicial pronouncements highly relevant in discussing activities of Malvern Crew and mentioning applicant' INADMISSIBLE AND REMOVABLE CLASSES Judicial pronouncements highly relevant as to applicants' involvement ment. That evidence was cred- ible and trustworthy in the cir- cumstances. Burton v. Canada (Minister of Public Safety and Emergency Preparedness) (June 11, 2012, F.C., Near J., File No. IMM- s involve- CASELAW 5723-11) 217 A.C.W.S. (3d) 672 (17 pp.). Application for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board that ap- plicant was not a Convention Refugee or person in need of protection. Applicant lost permanent resident status in United States aſter having been convicted of three criminal charges in 1992, 1995 and 2006 and was deported to Guyana. Board concluded there were se- rious reasons for believing that applicant had committed seri- ous non-political crime within meaning of Article 1F(b) of Convention Relating to the Sta- tus of Refugees during her stay in United States. Application allowed. Board did not provide adequate reasons explaining why applicant excluded from refugee protection. Board did not apply required criteria in or- der to determine if crimes were serious enough to attract Ar- ticle 1F(b). No evaluation of el- ements of crime, mode of pros- ecution and penalty prescribed. Just not enough to make plain remarks on criminal history of an applicant. Board failed to as- sess circumstances surrounding crimes. Profitt v. Canada (Minister of Citizenship and Immigration) (Apr. 30, 2012, F.C., Scott plain remarks on criminal history of applicant Not enough to make File No. IMM-5171-11) 217 A.C.W.S. (3d) 673 (17 pp.). J., TAX COURT OF CANADA Appeal from employment in- surance decision ruling bar manager job as not insurable employment. Appellant worked several years as manager and waitress for bar jointly owned with husband. EI assessment determined bar manager' Intermittent nature of layoffs more characteristic of family employment Employment Insurance APPEAL ployment was not insurable employment due to family run nature of business and link of dependency as family member rather than proof of employee subordination as role. Original assessment ruled lengthy un- paid tasks such as bookkeeping and upkeep of bar more char- acteristic of employment not insurable due to dependency of family relation. Original assess- ment and reviewing court held that intermittent nature of ap- pellant' s em- ager role more characteristic of family employment rather than genuine labour force lay-off due to seasonal work. Reviewing court held original assessment reasonable on facts and law. Ap- peal dismissed. Jacques v. M.N.R. (Mar. 29, 2012, T.C.C., Angers J., File s lay-offs from bar man- www.lawtimesnews.com No. 2011-1876(EI)) Reasons in French. 217 A.C.W.S. (3d) 605 (13 pp.). Appeal from employment in- surance ruling by law firm em- ploying three associate lawyers. Law firm initially ruled to be insurable employment for three associate lawyers. Appellant ar- gued that lack of subordination essential to work contract made lawyer associates not insurable employees. Court ruled criteria of employment contract under Civil Code of Quebec governed legal classification of employ- ment. Court ruled sole criteria of subordination to manage- ment orders relevant under classification of code. Court ruled that lack of subordination to manager on evidence of asso- ciates work contracts and actual work patterns made associates independent contractors and not subordinate employees un- der code. Court ruled associate lawyers were not in insurable employment due to lack of sub- ordination in actual work based on code and Employment In- surance regulatory definitions. Appeal allowed. Lavin Associes Inc. v. M.N.R. (Mar. 23, 2012, T.C.C., Bedard J., File No. 2010-578(EI)) Rea- sons in French. 217 A.C.W.S. (3d) 606 (14 pp.). insurable employment due to lack of subordination Associate lawyers not in Taxation Motion by Crown for order compelling taxpayer to provide written responses to examina- tions for discovery queries con- ducted by written questions. Appeal related to determina- tion under s. 55(2) of Income Tax Act (Can.), as to whether transaction or series of trans- actions was entered into for purposes of reducing amount of capital gain in taxpayer' irrelevant, abusive or designed to embarrass or harass party Unanswered questions not INCOME TAX hands. Motion granted. On ba- sis of pled assumptions, series of transactions were not pa- tently unrelated nor prima facie lacking in nexus to application and operation of s. 55(2). Based upon principles established in 2004 case, it was clear that un- answered questions on face of pleadings were not patently ir- relevant nor were they abusive or designed to embarrass or harass party or to delay case. Order was made that taxpayer be compelled to provide an- swers to unanswered questions and such responses be delivered within 30 days from date of is- suance of decision and order. D & D Livestock Ltd. v. Canada (June 12, 2012, T.C.C., Bocock J., File No. 2011-137(IT)G) 217 A.C.W.S. (3d) 722 (9 pp.). s Appeals by taxpayer from re- assessment by Minister under Farm never had potential to be economically profitable PAGE 17 Income Tax Act (Can.), for 2005, 2006, and 2007 taxa- tion years. Taxpayer purchased farm in 1994 while employed as mechanic. Taxpayer prepared no formal business plan, but planned to earn gross revenues of $22,500 to $24,500 from cow-calf operation involving 40 cows. Aſter reaching revenues near target range in 1996 and 1999, barn liquidation of herd leſt taxpayer unable to work on farm for one year. Taxpayer continued work- ing full-time as mechanic, earn- ing $60,000 to $100,000 from 2005 to 2007, before retiring in 2008 and ceasing to farm in 2010. Taxpayer claimed farm- ing losses of $15,500 on 2005 tax return, $28,000 on 2006 return, and $104,000 on 2007 return. Minister disallowed losses. Appeals dismissed. Farming was clearly not tax- payer' fire necessitating It was clear from evidence that taxpayer' tential to be economically prof- itable. Taxpayer' time spent farming were unre- liable, inconsistent with earlier estimates, and coincidentally totalled three more hours than worked at full-time job. Annual expenses alone significantly exceeded taxpayer' s chief source of income. s farm never had po- s estimates of farm revenues in three years in question, and taxpayer had dif- ficulty recalling them. Curtis v. Canada (July 12, 2012, T.C.C., Boyle J., File No. 2011- 580(IT)I) 217 A.C.W.S. (3d) 726 (14 pp.). s aggregate Appeal by taxpayers from as- sessments by Minister for failure of taxpayers to pay premiums under Employment Insurance Act (Can.), and Canada Pen- sion Plan. Taxpayers operated delivery service for department store. Appeals allowed but only to delete penalties. Minister conceded that penalties should be deleted. Court could not grant relief on grounds of fair- ness or equity, even if taxpayers had been misled by actions of Canada Revenue Agency. There was no relief that court could give except with respect to im- position of penalties which were small relative to entire amount assessed. Gutierrez v. M.N.R. (June 28, 2012, T.C.C., Woods J., File No. 2011-3441(CPP)) 217 A.C.W.S. (3d) 729 (8 pp.). except with respect to penalties No relief court could give Appeal by payor from deter- mination that worker was em- ployed with payor pursuant to contract of service but that her employment was excluded employment because she and payor were not dealing with each other at arm' Worker's total salary not justified according to hours worked cordance with s. 5(2)(i) and s. 5(3)(b) of Employment Insur- ance Act (Can.). Payor was sole proprietor and operated esthet- ic salon. During period under appeal, business operated from s length in ac-

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