Law Times

Page 14 February 12, 2018 • Law Times www.lawtimesnews.com CASELAW Federal Court of Appeal Immigration and Citizenship ENFORCEMENT Arrest and detention Court having no jurisdiction to determine whether immigration detainee could avoid continued detention L, who claimed to be citizen of Rwanda, was granted refugee status in 1996. Since his arrival in Canada, L had apparently had 389 police encounters result- ing in 95 criminal charges and 54 convictions. In August 2012, member of Immigration Divi- sion (ID) issued order for L's re- moval after determining that he was inadmissible on grounds of criminality pursuant to s. 36(2) (a) of Immigration and Refugee Protection Act. L was placed in detention in June 2013, was brief ly released in September 2013 but rearrested within few days and convicted of sexual assault. L's detention was main- tained in each of his regular 30 day detention reviews, on ba- sis that he was danger to public and f light risk, and in each or most of those decisions signifi- cant weight appeared to have been given to fact that L was not cooperating with requirement of Rwandan authorities that he sign declaration related to ac- quisition of travel documents. In January and February, ID member released L from deten- tion on certain conditions, after realizing that he had not had any Rwandan identity documents since his arrival in Canada. Min- ister's applications for judicial re- view of those two decisions were granted. In March, July, August and September, five decisions were made to release L from de- tention. Minister successfully brought application for judicial review of decisions, which were consolidated in one proceeding. L appealed. Appeal dismissed. There was no jurisdiction to de- cide appeal. Question as certified by application judge did not meet criteria for certification as ques- tion asked whether immigration detainee could avoid continued detention by failing to cooper- ate with removal. Question did not arise from facts as it devel- oped as neither party took issue with pre-release condition of cooperation and member's order expressly imposed as pre-release condition requirement that L do what he refused to do, which was sign declaration requested by Rwanda. Lunyamila v. Canada (Public Safety and Emergency Preparedness) (2018), 2018 Car- swellNat 71, 2018 FCA 22, Da- vid Stratas J.A., J. Woods J.A., and J.B. Laskin J.A. (F.C.A.); af- firmed (2016), 2016 CarswellNat 10983, 2016 CarswellNat 9006, 2016 FC 1199, 2016 CF 1199, Paul S. Crampton C.J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Federal Court of Appeal not having legal authority to grant Canada Pension Plan disability benefits Disability pension claimant's application for disability ben- efits under Canada Pension Plan was dismissed on ground that she did not have severe and prolonged disability at her mini- mum qualifying period. Social Security Tribunal – General Division dismissed claimant's appeal. Social Security Tribu- nal – Appeal Division allowed claimant's appeal and referred matter back to General Divi- sion for new hearing and to re- ceive more evidence. Claimant brought application for judicial review of Appeal Division's deci- sion on basis that it should have simply granted her disability benefits. Application dismissed. Appeal Division's decision to send matter to General Division was acceptable, defensible and reasonable. Federal Court of Ap- peal did not have legal authority to grant benefits to claimant, as only Social Security Tribunal was permitted to receive further evidence, assess whether claim- ant was disabled, and grant dis- ability benefits. This was not case where outcome on merits was certain enough to grant manda- mus. Evidentiary record did not support mandamus because of severe maladministration. This court did not have jurisdiction to uphold claimant's entitlement to benefits under Ontario Dis- ability Support Program or to award damages for alleged abu- sive conduct and conduct con- trary to human rights standards. Attorney General of Canada had now accepted that claimant was disabled within meaning of Canada Pension Plan. General Division may only need to re- ceive submissions from parties, calculate amount of benefits, and make order. Garshowitz v. Canada (At- torney General) (2017), 2017 CarswellNat 7421, 2017 FCA 251, Eleanor R. Dawson J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.). Federal Court Civil Practice and Procedure COSTS Costs of particular proceedings Taxpayer awarded costs after Minister of National Revenue withdrew request for information Taxpayer did not comply with re- quirement issued by Minister of National Revenue under s. 231.2 of Income Tax Act requesting information relating to taxpayer's offshore bank accounts. Minister brought application for compli- ance order. Minister informed taxpayer that requested infor- mation was no longer required because it was obtained through other means, withdrew require- ment, and discontinued compli- ance application. Taxpayer with- drew judicial review application of decision to issue requirement. Taxpayer and Minister each brought motion for costs of with- drawn applications. Taxpayer's motion granted, Minister's mo- tion dismissed. Taxpayer was awarded costs of $21,000 all-in- clusive. Party against whom pro- ceeding had been discontinued was entitled to costs. Withdrawal did not constitute admission of wrongdoing on part of Minister. Taxpayer's refusal to provide re- quested information necessitated compliance application. Judicial review application was duplica- tive. Solicitor-client costs or costs in excess of Column III of Tariff B were not warranted. There was no evidence of reprehensible, scan- dalous or outrageous conduct on part of Minister. Minister's decision not to disclose informa- tion sought by taxpayer was not unreasonable. Requirement and compliance application were not improper, vexatious or unneces- sary. Taxpayer was entitled to par- tial costs on lump-sum basis. Canada (National Revenue) v. Prince (2017), 2017 Carswell- Nat 6672, Simon Noël J. (F.C.). Immigration and Citizenship REFUGEE PROTECTION Removal Officer finding evidence contained insufficient evidence of applicant's ethnicity Procedural fairness. Applicant was citizen of Hungary who entered Canada in 2015 and claimed refugee status based on Roma and Jewish ethnicity. Ap- plicant was found inadmissible to Canada for serious criminal- ity. Refugee claim was termi- nated and deportation order issued. Applicant applied for pre- removal risk assessment (PRRA) claiming risk of harm from right- wing extremist groups and racist Hungarian society because of ethnicity. PRRA officer found applicant was not person in need of protection and rejected appli- cation. Applicant claimed officer breached procedural fairness. Applicant brought application for judicial review. Application dismissed. Officer considered all documentation filed in support of PRRA and profile of applicant. Officer found documentary evi- dence was of poor quality and contained insufficient evidence of applicant's ethnicity. Offi- cer did not question applicant's credibility, but rather concluded that evidence provided was in- sufficient to establish, on balance of probabilities, that applicant was half-Roma and half-Jewish or would be perceived to be so by Hungarian society. There was no breach of procedural fairness. Zdraviak v. Canada (Min- ister of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 861, 2017 FC 305, Patrick Gleeson J. (F.C.). Tax INCOME TAX Administration and enforcement Canada Revenue Agency directed to process taxpayer's voluntary disclosure application Taxpayer decided to make vol- untary disclosure but before it could be completed Canada Rev- enue Agency (CRA) commenced audit. Voluntary disclosure dis- missed as was second applica- 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. 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