---
tags:
- sentence-transformers
- sentence-similarity
- feature-extraction
- generated_from_trainer
- dataset_size:13500
- loss:MultipleNegativesRankingLoss
base_model: nomic-ai/nomic-embed-text-v1.5
widget:
- source_sentence: 'cluster: SUMMARY: D Souza v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2021-12-16
Neutral citation
2021 FC 1430
File numbers
IMM-6744-19
Decision Content
Date: 20211216
Docket: IMM-6744-19
Citation: 2021 FC 1430
Ottawa, Ontario, December 16, 2021
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
RESHMA ANITHA D SOUZA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter
[1] The Applicant seeks judicial review of a November 5, 2019 re-determination
decision [Decision] of a visa officer [Officer] pursuant to section 72 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Officer refused
the Applicant’s application for a temporary resident visa and work permit [the
Application] because the Officer was not satisfied that the Applicant’s offer
of employment [Employment Offer] was genuine.
[2] The application for judicial review is allowed.
II. Background
[3] The Applicant is a citizen of India. In December 2018, the Applicant submitted
her Application to work as an in-home child caregiver in Calgary, Alberta. At
the time, she was working in the United Arab Emirates. Her Application was based
on a positive Labour Market Impact Assessment issued to her prospective employers
[Prospective Employers].
[4] In September 2018, the Applicant and the Prospective Employers signed a two-year
employment contract, which they subsequently amended to reflect slightly less
hours of work. The Prospective Employers’ two children were 8 and 15 years old
at the time. In May 2019, the Application was refused. In July 2019, the Applicant
applied for leave and for judicial review of the initial refusal. In September
2019, the Applicant agreed to discontinue her application for leave and for judicial
review and the Respondent agreed to have another officer re-determine the Application.
[5] On re-determination, the Officer requested further information from the Prospective
Employers. The Applicant’s legal counsel submitted a September 20, 2019 letter
[Legal Counsel’s Letter], in which they provided several documents, including
a written employment offer addressed to the female Prospective Employer, updated
Notices of Assessment [NOA], and the Applicant’s Employment Offer containing salary
details. Ultimately, the Officer refused the Application because he was not satisfied
that the Applicant’s Employment Offer was genuine.
III. The Decision
[6] The Decision consists of a letter dated November 5, 2019 and the accompanying
Global Case Management System notes. The Officer determined that the Employment
Offer was not genuine. The Officer was not satisfied that the Employment Offer
was consistent with the Prospective Employer’s reasonable needs. Further, he was
not satisfied that the Prospective Employers could support the Employment Offer.
[7] In the earlier application, the Prospective Employers indicated that the female
Prospective Employer had turned down employment because they were not able to
find childcare. In response to the Officer’s request for additional information,
Legal Counsel’s Letter provided submissions in support of the Application and
provided, among other requested information, the female Prospective Employer’s
written job offer dated October 25, 2018. The Officer mistakenly states the job
offer is dated October 25, 2019. The Officer questioned why the Prospective Employers
did not provide any job offers prior to the Officer’s request. The Officer suggested
that this indicated that the female Prospective Employer’s search for work began
only after the Officer requested evidence of job offers.
[8] The Officer considered the Prospective Employers’ two most recent NOAs that
showed an annual income of $81,423 and $79,717. The Officer took the higher number
and added the female Prospective Employer’s benefits of $5,861. The Officer determined
that the Prospective Employers would be left with an income of approximately $65,000
after paying the Applicant’s $27,300 salary. The Officer determined that $65,000
is not a reasonable income to live off, particularly when compared to the benefits
of retaining an additional $30,000. The Officer concluded that this was evidence
that the Prospective Employers may not be able to fulfill the terms of the Employment
Offer.
[9] With regard to the reasonable needs of the Prospective Employers, the Officer
considered the age of their children and their need to hire a childcare provider.
The Prospective Employers raised the best interests of the child, but the Officer
found they provided little evidence of how the Applicant would improve the interests
of the children. For example, the Officer noted that the Prospective Employers
indicated that they needed a childcare provider to keep their 16-year-old out
of trouble. However, there were few details of what trouble they expected or how
a new caregiver would have more success than the teenager’s parents in dealing
with a teenager. The Officer further found that it was unclear why the 16-year-old
could not supervise the nine-year-old, especially given the costs of childcare.
IV. Issues and Standard of Review
[10] The issues in this case are:
(1) Is the Decision reasonable?
(2) Should the Court enter an indirect substitution or make a cost order in favour
of the Applicant?
[11] The first issue does not engage one of the exceptions set out in Canada (Minister
of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and is therefore
reviewable on the standard of reasonableness (Vavilov at paras 16-17, 23-25).
In assessing the reasonableness of a decision, the Court must consider both the
outcome and the underlying rationale to assess whether the “decision as a whole
is transparent, intelligible and justified” (Vavilov at para 15). For a decision
to be reasonable, a decision-maker must adequately account for the evidence before
it and be responsive to the Applicant’s submissions (Vavilov at paras 89-96, 125-128).
[12] There is no standard of review for the second issue.
V. Preliminary Matter
[13] At the hearing, the Respondent submitted a supplementary Certified Tribunal
Record for filing. The Applicant did not object. The Court accepts it for filing.
VI. Parties’ Positions and Analysis
A. Is the Decision reasonable?
(1) Applicant’s Position
[14] The Officer misread or overlooked evidence that was material to the female
Prospective Employer’s work situation. First, it was unreasonable for the Officer
to conclude that the female Prospective Employer would refuse job offers. The
Officer unreasonably speculated that in many families, both parents work without
a caregiver. Furthermore, when the Officer reviewed the female Prospective Employer’s
job offer he mistakenly said the date was October 25, 2019 when it was actually
October 25, 2018. The Officer then questioned why the Prospective Employers had
not provided earlier job offers. Finally, the Officer failed to account for the
Prospective Employers explanation that she only had one written job offer because
the rest were verbal.
[15] Second, the Officer failed to consider that the male Prospective Employer
travels extensively for work. This led the Officer to generalize about his ability
to assist his wife. This generalization had no basis in the record.
[16] Third, the Officer stated that the Prospective Employers failed to explain
the reduction in work hours. This indicates that the Officer overlooked the letters
from the Prospective Employers and the Applicant’s counsel’s submissions. Those
letters explain that the change in proposed work hours was to accommodate the
female Prospective Employer’s intention to return to school.
[17] Finally, the Officer unreasonably concluded that the Prospective Employers
intended to have the Applicant care for their 16-year-old son. This conclusion
demonstrates that the Officer misread the Employment Offer, job description, and
the Prospective Employer’s letter. This evidence makes it clear that the Prospective
Employers’ intent is for the Applicant to care for their younger child.
[18] With respect to the Prospective Employers’ ability to fulfil the terms of
the Employment Offer, the Officer erred in determining that $65,000 “is not a
reasonable salary at which to live in order to have a caregiver when compared
to the benefits of having an additional $30,000.” The Applicant submits that the
Officer departed from the established method for assessing financial sufficiency
and adopted a methodology “without any apparent or known rules.”
(2) Respondent’s Position
[19] The Officer’s error with respect to the date of the female Prospective Employer’s
job offer is inconsequential. One written job offer supports the Officer’s finding
that there was insufficient evidence that the female Prospective Employer had
turned down employment due to a lack of childcare.
[20] The Respondent submits that Legal Counsel’s Letter, which provided an explanation
for the reduction in the Applicant’s work hours, is not evidence. This letter
required corroboration. Therefore, it was reasonable for the Officer to conclude
that the Prospective Employers did not provide a clear reason for the reduction
in hours.
[21] The Officer did not err by stating that the Prospective Employers intended
to have the Applicant care for both of their children. The Respondent notes the
use of the word “children” in both the Application and the Employment Offer. The
Respondent says the Officer was under no obligation to clarify this ambiguity
for the Applicant.
[22] Finally, the Officer’s assessment of the Prospective Employers’ financial
situation, viewed in the broader context, was reasonable.
(3) Analysis
[23] In Aghaalikhani v Canada (Citizenship and Immigration), 2019 FC 1080 at para
24, Justice Gascon held that “when an administrative tribunal is silent on evidence
clearly pointing to an opposite conclusion and squarely contradicting its findings
of fact, the Court may intervene and infer that the tribunal overlooked the contradictory
evidence when making its decision.” Justice Gascon also held that when parts of
the evidence are “misapprehended” and “where the findings do not flow from the
evidence” the decision will not be reasonable (at para 17). Likewise, more recently,
in Vavilov the Supreme Court of Canada stated:
[126] That being said, a reasonable decision is one that is justified in light
of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary
record and the general factual matrix that bears on its decision into account,
and its decision must be reasonable in light of them: see Southam, at para. 56.
The reasonableness of a decision may be jeopardized where the decision maker has
fundamentally misapprehended or failed to account for the evidence before it.
[24] I am persuaded by the Applicant’s submissions that the Officer overlooked
or misapprehended material evidence, rendering the Decision unreasonable. First,
the Officer fails to mention the Prospective Employers’ evidence that further
job offers were not adduced because they were made orally. The Officer simply
declares that “it is unclear why those earlier offers were not provided.”
[25] The Officer also incorrectly cites the date on the female Prospective Employer’s
job offer by one year. This mistake leads the Officer to infer that her job search
began only after the Officer requested evidence of job offers. Based on this misapprehension
of evidence, the Officer gives little weight to the female employer’s prospects
of future employment, which is the primary reason for the Officer’s concerns about
the Prospective Employers’ reasonable needs.
[26] The Officer relies on this misapprehension when concluding that it is “unreasonable”
for the female Prospective Employer to refuse work “given the number of families
in Canada where both parents work without a caregiver.” There is no basis for
this conclusion. This statement also indicates that the Officer overlooked the
evidence of the male Prospective Employers extensive travel for work. Ultimately,
I find the Officer’s findings related to the female Prospective Employer’s job
situation unreasonable.
[27] Furthermore, I find the Officer’s conclusion about the Prospective Employers’
ability to fulfil the terms of the Employment Offer speculative and not based
on the evidence. The Officer failed to explain why the Prospective Employer’s
ability to pay the Applicant was insufficient. The Officer makes no mention of
the Prospective Employer’s savings nor explains why an income well above the Low
Income Cut Off leads to concerns that the Prospective Employers cannot reasonably
fulfill the Employment Offer. The reasons do not permit the Court to understand
how the Officer arrived at this finding.
[28] The Officer also expresses concern that the Prospective Employers could not
reasonably fulfill the terms of the Applicant’s Employment Offer because they
reduced the work hours in the updated contract by one hour per day. The Officer
speculates that if the Prospective Employers’ needs increase to eight hours per
day, the “financial arrangement would be even less reasonable.” While I am not
convinced by the Applicant’s submissions that the change was “completely explained”
by the Prospective Employer’s letter, the Officer nevertheless bases his finding
on his assessment that $65,000 is not enough to live off. The Officer’s adverse
inference concerning the updated employment hours flows from the flawed financial
sufficiency analysis. The “assessment of the employer’s capacity to pay should
not be based on speculation” (Bautista v Canada, 2018 FC 669 at para 16).
[29] Finally, the Officer makes a number of errors regarding what child the Applicant
would care for. The Officer erroneously states that the Prospective Employers
“have indicated they want the Applicant to supervise the 16 year old to keep him
out of trouble.” In their July 14, 2019 letter, the Prospective Employers explain
that their “intention” is to hire a caregiver to care for the younger child. This
would allow the female Prospective Employer to focus more of her attention on
her 16-year-old son to ensure he does not “take the wrong path with peer group
and pressure.” Furthermore, the Employment Offer only lists the younger child
as the child in need of care. Finally, I note that the Officer questions why “a
new caregiver would have more success” “if a teenager is disobedient to their
parents.” This statement is also speculative and not based on the contents of
the Application.
[30] Ultimately, I find that the Decision is based on overlooked or misapprehended
evidence. The Decision is not justified, transparent, and intelligible. Therefore,
it is not reasonable.
B. Should the Court enter an indirect substitution or make a cost order in favour
of the Applicant?
(1) Applicant’s Position
[31] The Applicant requests a “directed verdict” on the ground that all factual
findings have been made. The Applicant states that the Court can make a decision
“without wading into the decision-making process on the basis of an incomplete
factual record” and without weighing the evidence “in place of the decision-maker.”
The Respondent has not submitted contrary evidence and therefore, the Court is
not being asked to weigh evidence. The Applicant points to paragraph 142 of Vavilov
where the Supreme Court of Canada stated:
…An intention that the administrative decision maker decide the matter at first
instance cannot give rise to an endless merry-go-round of judicial reviews and
subsequent reconsiderations. Declining to remit a matter to the decision maker
may be appropriate where it becomes evident to the court, in the course of its
review, that a particular outcome is inevitable and that remitting the case would
therefore serve no useful purpose.
[32] It has been more than a year since the Applicant applied for her work permit.
The Applicant submits that allowing a “directed verdict” will spare her from another
lengthy delay.
(2) Respondent’s Position
[33] The Respondent submits that this is not an appropriate case for indirect
substitution – the correct term for “directed verdict” in the administrative context
– because, contrary to what the Applicant submits, “there is not only one lawful
response, or one reasonable conclusion.” The Respondent also submits that this
is not an appropriate case for a costs award because “[t]here is no evidence that
the Respondent has unnecessarily or unreasonably prolonged the proceedings.”
(3) Analysis
[34] In Canada (Citizenship and Immigration) v Tennant, 2019 FCA 206, the Federal
Court of Appeal [FCA] determined that the remedy of indirect substitution is an
exceptional power under the law of judicial review (at para 79). It is available
in cases where “the court concludes that there is only one reasonable outcome,
so that returning the matter to the administrative decision-maker would be pointless”
(at para 82).
[35] I agree with the Respondent that this is not an exceptional case warranting
indirect substitution. Although I have concluded that the Officer overlooked or
misapprehended the evidence, this does not lead to the conclusion that there is
“only one reasonable outcome.”
[36] Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection
Rules, SOR/93-22 [Rules], provides that no costs shall be awarded in respect of
an application for judicial review unless the Court, for special reason, so orders.
The Rules do not define “special reasons.” At paragraph 7 of Ndungu v Canada (Citizenship
and Immigration), 2011 FCA 208 [Ndungu] the FCA summarized the non-exhaustive
circumstances in which special reasons will be found to justify an award of costs
as well as situations that fall short of the “special reasons” standard. In Sisay
Teka v Canada (Immigration, Refugees and Citizenship), 2018 FC 314, this Court
held that the special reasons exception contemplated in Rule 22 is a “high bar”
(at para 41).
[37] The Applicant submits that the Respondent has unnecessarily or unreasonably
prolonged the proceedings and that this constitutes special reasons (Ndererehe
v Canada (Citizenship and Immigration), 2007 FC 880 [Ndererehe]). Ndererehe is
distinguishable from the present case. In that case, unlike here, the prolonging
of the proceedings led to the Applicants facing risk to their personal safety.
Additionally, in Ndererehe the Court found that the Applicant’s situation was
oppressive and threatening and that they had suffered since their application
was refused (at para 23). Again, no such circumstances are present here.
[38] In Ndungu, the FCA made clear that an award of costs cannot be justified
merely because “an immigration official has made an erroneous decision” (at para
7). In my view, this case does not meet the high bar for a costs award.
VII. Conclusion
[39] The Decision is not reasonable. It lacks the requisite degree of transparency,
intelligibility, and justification. The application for judicial review is allowed.
[40] This is not an appropriate case for the Court to enter an indirect substitution
or to award costs.
[41] The parties did not raise any question of general importance for certification
and none arises.
JUDGMENT in IMM-6744-19
THIS COURT’S JUDGMENT is that:
The application for judicial review allowed.
There is no question for certification.
There is no order as to costs.
"Paul Favel"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
Docket:
IMM-6744-19
STYLE OF CAUSE:
RESHMA ANITHA D SOUZA v THE MINISTER OF CITZENSHIP AND IMMIGRATION
PLACE OF HEARING:
HELD BY VIDEOCONFERENCE
DATE OF HEARING:
june 2, 2021
JUDGMENT AND reasons:
FAVEL J.
DATED:
december 16, 2021
APPEARANCES:
Deanna Okun-Nachoff
For The Applicant
Julio Paoletti
For The Respondent
SOLICITORS OF RECORD:
Deanna Okun-Nachoff
McCrea Immigration Law
Vancouver, B.C.
For The Applicant
Julio Paoletti
Attorney General of Canada
Vancouver, B.C.
For The Respondent
'
sentences:
- 'cluster: CONCLUSION: The court allows the application for judicial review and
sets aside the decision of the visa officer. The court declines to enter an indirect
substitution or make a cost order in favour of the person concerned, as it does
not meet the high bar for a costs award. The court finds that the decision was
not reasonable, and the person concerned''s application for a temporary resident
visa and work permit should be reconsidered.'
- 'cluster: SUMMARY: **(1) Facts**
The person concerned, a citizen of India, applied for a temporary resident visa
and work permit to work as an in-home child caregiver in Calgary, Alberta. Her
application was based on a positive Labour Market Impact Assessment issued to
her prospective employers, a couple with two children. The couple signed a two-year
employment contract with the person concerned, which they later amended to reflect
slightly less hours of work. The person concerned''s application was initially
refused, and she applied for leave and judicial review. The case was re-determined
by a different officer, who requested further information from the couple. The
person concerned''s legal counsel submitted additional documents, including a
written employment offer and updated Notices of Assessment. Despite this, the
officer refused the application, concluding that the employment offer was not
genuine.
**(2) Issue**
The main issue before the court is whether the decision of the visa officer to
refuse the person concerned''s application for a temporary resident visa and work
permit was reasonable. The court also considers whether it should enter an indirect
substitution or make a cost order in favour of the person concerned.
**(3) Rule**
The court applies the standard of review of reasonableness, as set out in Canada
(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The court must
consider both the outcome and the underlying rationale of the decision to assess
whether it is transparent, intelligible, and justified.
**(4) Analysis**
The court finds that the decision of the visa officer was not reasonable. The
officer overlooked or misapprehended material evidence, including the couple''s
explanation for the reduction in work hours and the female employer''s prospects
of future employment. The officer also made several errors regarding the couple''s
ability to fulfill the terms of the employment offer, including their financial
situation and the number of hours they would need to hire a caregiver. The court
finds that the officer''s findings were speculative and not based on the evidence.
The court also finds that the decision is not justified, transparent, and intelligible.
The officer''s conclusion that the employment offer was not genuine is not supported
by the evidence, and the officer failed to consider the couple''s explanations
and submissions.
**(5) Conclusion**
The court allows the application for judicial review and sets aside the decision
of the visa officer. The court declines to enter an indirect substitution or make
a cost order in favour of the person concerned, as it does not meet the high bar
for a costs award. The court finds that the decision was not reasonable, and the
person concerned''s application for a temporary resident visa and work permit
should be reconsidered.'
- 'cluster: SUMMARY: **(1) Facts**
The person concerned, a visa applicant, sought judicial review of a decision made
by the Visa Officer, who was acting on behalf of the Minister of Citizenship and
Immigration. The Visa Officer had refused to issue a visa to the applicant due
to concerns about his adaptability for personal suitability purposes. Specifically,
the Visa Officer had questioned the applicant''s lack of travelling experience.
The applicant had not provided any evidence to counter the Visa Officer''s concerns,
and the officer had not informed the applicant of her assessment of his evidence
during the interview. The applicant''s counsel argued that the Visa Officer had
taken into account an irrelevant consideration and that the applicant had not
been given an opportunity to respond to the officer''s concerns.
**(2) Issue**
The issue before the court was whether the Visa Officer had erred in refusing
to issue a visa to the applicant due to his lack of travelling experience. The
court had to determine whether the officer''s consideration of this factor was
relevant and whether the applicant had been given adequate opportunity to respond
to the officer''s concerns.
**(3) Rule**
The court applied the relevant rules and principles of administrative law, including
the duty of a decision-maker to consider relevant factors and to provide adequate
reasons for their decisions. The court also considered the principle that a decision-maker
is not required to inform an applicant of their assessment of their evidence during
an interview.
**(4) Analysis**
In analyzing the issue, the court noted that the applicant''s lack of travelling
experience may be relevant to the question of his adaptability for personal suitability
purposes. The court also noted that there was no indication that undue emphasis
was placed on this consideration by the Visa Officer. Furthermore, the court held
that the applicant had not been denied an opportunity to respond to the officer''s
concerns, as the officer had not been required to inform the applicant of her
assessment of his evidence during the interview. The court concluded that the
Visa Officer had not erred in refusing to issue a visa to the applicant.
**(5) Conclusion**
The judicial review was dismissed, and the decision of the Visa Officer was upheld.
The court found that the Visa Officer had not taken into account an irrelevant
consideration and that the applicant had been given adequate opportunity to respond
to the officer''s concerns. The court''s decision was based on the principles
of administrative law and the relevant rules governing the decision-making process
of the Visa Officer.'
- source_sentence: 'cluster: RULES: Canada (Attorney General) v. Patterson
Court (s) Database
Federal Court Decisions
Date
2004-09-21
Neutral citation
2004 FC 1292
File numbers
T-1455-04
Decision Content
Date: 20040921
Docket: T-1455-04
Citation: 2004 FC 1292
Ottawa, Ontario this 21st day of September 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
STEPHEN JOHN PATTERSON
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Attorney General of Canada (the "Applicant") seeks an interim injunction
directing Mr. Stephen John Patterson (the "Respondent") to "forthwith forfeit
and surrender possession" to officers of the Canadian Food Inspection Agency ("CFIA")
a northern flying squirrel in his possession that he imported from the United
States of America into Canada on or about June 26, 2004, through the port of entry
at Windsor, Ontario.
[2] The Applicant brings this application pursuant to the Canadian Food Inspection
Agency Act, S.C. 1997, c. 6, as amended, (the "Act") and the Federal Court Rules,
1998, SOR/1998-106, as amended (the "Rules").
BACKGROUND
[3] The Respondent, according to his affidavit filed in this proceeding, is a
conservationist and naturalist who has spent the last ten years studying flying
squirrels. He describes himself as an expert in that area and a few years ago
he created a web site to provide information to interested persons about flying
squirrels.
[4] The Respondent states that the flying squirrels are indigenous to Canada but
it is prohibited to capture such an animal and keep it in captivity, for any purpose.
In the spring of this year, he decided to legally import a northern flying squirrel
for educational purposes, in order to provide presentation to nature groups, such
as children and other visitors to provincial parks.
[5] The Respondent obtained an authorization from the Ministry of Natural Resources
for the Province of Ontario on June 8, 2004. According to its face, this authorization
was issued pursuant to the Fish and Wildlife Conservation Act, 1997, S.O. 1997,
c. 41. The authorization is entitled "Authorization to Keep Specially Protected
and Game Wildlife in Captivity" and identifies the species of wildlife as "Northern
Flying Squirrel". The authorization refers to one animal and is effective from
June 8, 2004 until December 31, 2006.
[6] The Respondent obtained a permit from the U.S. Fish and Wildlife Service on
June 15, 2004. This written authorization is described as an "Import/Export Licence"
with effect between June 15, 2004 and May 31, 2005.
[7] On June 25, 2004, the Respondent executed a "Declaration for Importation or
Exportation of Fish or Wildlife" with the U.S. Fish and Wildlife Service. This
permit identifies the species of wildlife by both its official name, "glaucomys
sabrinus" and its common name, "northern flying squirrel".
[8] On June 26, 2004, the Respondent purchased the northern flying squirrel from
Ratkateers Rodentry of Marshall, Indiana. That entity issued the Respondent a
"Record of Acquisition, Disposition or Transport of Animals" under the auspices
of the U.S. Department of Agriculture, Animal and Plant Health Inspection Service.
[9] On the same day, that is June 26, 2004, the Respondent entered Canada by car
at the Windsor Ambassador Bridge. He provided all the previously mentioned documentation
to the Canada Customs and Revenue Agency officer and was allowed to enter Canada
with the northern flying squirrel.
[10] On July 5, 2004, the Respondent was contacted by a representative of the
CFIA who wanted to know if he had imported a northern flying squirrel into Canada.
The Respondent confirmed that he had done so. He was advised that such importation
was illegal and that he would "likely have to remove it".
[11] On the following day, July 6, 2004, the Respondent received an "Order to
Remove" from the CFIA directing the removal of the animal from Canada by July
9, 2004. The Respondent did not remove the northern flying squirrel pursuant to
the Order and offered to submit the squirrel to quarantine and to pay the costs
to have it tested for any disease. That offer was refused by the Applicant.
[12] The Respondent states, in his affidavit, that on August 16, 2004, he brought
the squirrel to the Britannia Animal Hospital in Mississauga, Ontario for an examination.
According to the affidavit of the examining veterinarian, Dr. Jaques, the squirrel
was free of any sign of illness or disease.
[13] On or about July 8, 2004, the Respondent made inquiries of the Centre for
Disease Control ("CDC") in Atlanta, Georgia, United States of America. He says
that he was informed that that body had not found an association between monkeypox
and flying squirrels. Further, the Respondent says that he was advised by the
CDC that the same information was relayed to Dr. Mroz. of the CFIA.
[14] The Applicant filed the affidavit of Dr. Debbie Barr, a Senior Staff Veterinarian
with the CFIA. In her affidavit, Dr. Barr related the steps undertaken by the
CFIA to effect the removal of the flying squirrel after becoming aware of its
presence in Canada. The CFIA issued an Order to Remove pursuant to the Health
of Animals Act, S.C. 1990, c. 21, as amended, on July 6, 2004, and specified a
removal date of July 9, 2004.
[15] As well, Dr. Barr discussed the regulation of imported animals and the monkeypox
virus. She described that virus as a "rare viral disease that occurs mostly in
central and western Africa." She said that an outbreak of monkeypox was reported
in the United States of America in June 2003. The Canadian response to the outbreak
of monkeypox in the United States was to exercise its power under the Health of
Animals Act, supra, to refuse entry into Canada of "susceptible animals based
on suspicion of disease."
[16] This led to the enactment of the Prairie Dog and Certain Other Rodents Importation
Prohibition Regulations, SOR/2003-310 ("Importation Prohibition Regulations")
on September 10, 2003. According to these Regulations, the importation of any
squirrel of the family Sciuridae from any country is prohibited.
[17] Dr. Barr deposed that when the Importation Prohibition Regulations came into
effect, the CDC had not completed its investigation into the monkeypox outbreak
in the United States. The CFIA considers the Importation Prohibition Regulations
to be part of its ongoing policy to prevent the introduction of animal disease
into Canada that could affect either human health or the Canadian livestock industry.
[18] The CFIA seeks injunctive relief from the Court because the Respondent has
failed to comply with the Order to Remove. Although the issue of the monkeypox
virus was addressed in the affidavit of Dr. Barr, the Applicant made it clear
on the record during the hearing of this application that he was not relying on
that issue as a basis for his request for an interim injunction.
DISCUSSION
[19] The Applicant is seeking an interim injunction pursuant to section 18 of
the Act which provides as follows:
18. The Agency may apply to a judge of a court of competent jurisdiction for an
interim injunction enjoining any person from contravening an Act or provision
that the Agency enforces or administers by virtue of section 11, whether or not
a prosecution has been instituted in respect of that contravention.
18. L''Agence peut demander à un juge d''une juridiction compétente une ordonnance
provisoire interdisant toute contravention à une loi ou disposition don''t elle
est chargée d''assurer ou de contrôler l''application aux termes de l''article
11 - que des poursuites aient été engagées ou non sous le régime de celle-ci.
[20] Section 11 of the Act authorizes the CFIA to supervise the implementation
of the statutes, including the Health of Animals Act, supra under which the Order
to Remove was issued. Section 11(1) provides as follows:
11. (1) The Agency is responsible for the administration and enforcement of the
Agriculture and Agri-Food Administrative Monetary Penalties Act, Canada Agricultural
Products Act, Feeds Act, Fertilizers Act, Fish Inspection Act, Health of Animals
Act, Meat Inspection Act, Plant Breeders'' Rights Act, Plant Protection Act and
Seeds Act.
11. (1) L''Agence est chargée d''assurer et de contrôler l''application des lois
suivantes_: la Loi sur les sanctions administratives pécuniaires en matière d''agriculture
et d''agroalimentaire, la Loi sur les produits agricoles au Canada, la Loi relative
aux aliments du bétail, la Loi sur les engrais, la Loi sur l''inspection du poisson,
la Loi sur la santé des animaux, la Loi sur l''inspection des viandes, la Loi
sur la protection des obtentions végétales, la Loi sur la protection des végétaux
et la Loi sur les semences.
[21] The Applicant says that this statutory provision is the only means available
to obtain possession of the flying squirrel, for removal from Canada. The Applicant
has provided a written undertaking in his submissions to respect any order for
damages that may be made by this Court.
[22] The parties agree that the applicable test for the granting of an interim
injunction is that set out in RJR Macdonald Inc. v. Canada, [1994] 1 S.C.R. 311,
that is the existence of a serious issue for trial, irreparable harm if the relief
sought is denied and that the balance of convenience favours the moving party.
The Applicant bears the burden of establishing all three factors.
[23] According to the Applicant, the serious issue arises in relation to the Respondent''s
alleged continuing violation of the Importation Prohibition Regulations.
[24] In the present case, the sole basis for the underlying application for judicial
review is the request for an interim injunction for the delivery up of the flying
squirrel now in the possession of the Respondent. The Applicant says that this
is the only way that he can seek this relief pursuant to section 18 of the Act.
The Respondent says this is not a "serious issue", within the meaning of RJR-MacDonald,
supra, since the activity complained about, that is the "importation of the squirrel",
is not continuing but has already occurred.
[25] In my opinion, it is doubtful whether the Applicant has shown that a serious
issue exists here. It is not necessary to decide that issue, however, because
I am not satisfied that the Applicant has met the test of irreparable harm.
[26] The Applicant characterizes the Respondent''s disobedience of the Order to
Remove as constituting irreparable harm. I disagree. The test for irreparable
harm is well known. An applicant must produce evidence of irreparable harm that
is clear and not speculative, and that evidence must show that irreparable harm
would occur, not that it is likely. In this regard, I refer to Centre Ice Ltd.
v. National Hockey League (1994), 53 C.P.R. (3d) 34 (Fed. C.A.).
[27] The Applicant is not arguing nor has he shown that public health is an issue
in this motion. At the same time, the Applicant submits that the Health of Animals
Act, supra, prohibits a person from possessing an animal that was known to be
imported contrary to that Act or regulations passed pursuant to it.
[28] The Respondent has not been charged with any breach of the applicable regulations
or of a statute. There is no evidence that he knowingly acted in breach of any
statutory regime and that issue is not before this Court. It is not necessary
to address the issue of balance of convenience since the Applicant has failed
to establish irreparable harm.
[29] The Applicant is seeking an interim injunction and it has not met the legal
test for obtaining that relief. Accordingly the motion is dismissed with costs
to the Respondent.
ORDER
The motion is dismissed with costs to the Respondent.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1455-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
and
STEPHEN JOHN PATTERSON
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2004
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: September 21, 2004
APPEARANCES:
Eric Peterson
FOR APPLICANT
Clayton C. Ruby
Brian Shiller
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
FOR APPLICANT
RUBY & EDWARDH
Barristers & Solicitors
Toronto, ON
FOR RESPONDENT
'
sentences:
- 'cluster: ISSUES: The main issue before the court is whether the Applicant, the
Attorney General of Canada, has met the test for obtaining an interim injunction,
specifically the existence of a serious issue for trial, irreparable harm if the
relief sought is denied, and that the balance of convenience favours the moving
party.'
- 'cluster: ANALYSIS: The Court found that the Board did not err by conducting
a state protection analysis without first assessing the person concerned''s credibility.
Although it would have been preferable for the Board to assess the person concerned''s
subjective fear before analyzing the objective component, the failure to do so
did not raise a reviewable error. The Court accepted that the Board conducted
the state protection analysis while accepting that the person concerned''s allegations
were true. The Board engaged with the factual matrix presented by the person concerned''s
testimony and found that he failed to rebut the presumption of state protection
because he did not take all reasonable steps under the circumstances to seek state
protection in Guyana.The Court also found that the Board''s state protection finding
was reasonable. The Board thoroughly canvassed the nature of the person concerned''s
claim of risk and reviewed the documentary evidence on country conditions in its
detailed reasons. The person concerned failed to provide any convincing evidence
demonstrating that protection was neither forthcoming nor adequate. The documentary
evidence cited by the person concerned lacked specificity and did not directly
counter the Board''s conclusion that Guyana is in effective control of its territory
and has in place a functioning security force to uphold the laws and constitution
of the country.'
- 'cluster: RULES: The court applied the test for interim injunctions set out in
RJR Macdonald Inc. v. Canada, [1994] 1 S.C.R. 311, which requires the Applicant
to establish a serious issue for trial, irreparable harm, and that the balance
of convenience favours the moving party. The court also considered section 18
of the Canadian Food Inspection Agency Act, which authorizes the CFIA to apply
for an interim injunction to enjoin any person from contravening an Act or provision
that the Agency enforces or administers.'
- source_sentence: 'cluster: SUMMARY: Choezom v. Canada (Minister of Citizenship
and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-09-30
Neutral citation
2004 FC 1329
File numbers
IMM-1420-04
Notes
Digest
Decision Content
Date: 20040930
Docket: IMM-1420-04
Citation: 2004 FC 1329
Ottawa, Ontario, this 30th day of September, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
TENDZIN CHOEZOM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The 30 year old Applicant is the daughter of Tibetan refugees. She was born
in India, where her family continues to reside, but is considered to be a citizen
of the People''s Republic of China.
[2] From the time of her birth until 1994, the Applicant, as all other Tibetan
residents of India, was required to obtain a Registration Certificate (RC), which
was renewed annually. In 1994, when she travelled to the United States for the
purposes of study and employment, she was issued an Identity Certificate (IC),
which she continues to renew periodically. The Applicant must obtain a visa and
carry her IC with her if she wishes to visit India. If she were to return to reside
in India, she would need to have a valid IC, a visa and would need to first obtain
a NORI (No Objection for Return to India). Once back in India she would need to
obtain a new RC . While living in India, Tibetans are not permitted to travel
to many locations in India without permission from local authorities or the police,
[3] The Applicant resided in the United States until 2003. During this time, she
did not claim asylum. Instead she travelled to Canada in 2003 where she claimed
refugee protection on numerous grounds, including race and religion.
[4] The determinative issue before the Board was whether or not the Applicant
was a refugee by virtue of the exclusionary clause set out in Article 1(E) of
the Refugee Convention. In its Reasons the Board noted:
1. The Applicant has consistently been able to obtain identification documents
which provided her with a right to reside in and return to India;
2. The Applicant has been freely able to work in her profession of choice;
3. The Applicant would have been able to pursue schooling if she had not decided
to move to the United States; and
4. The Applicant has been provided with the same food rations and medical services
as Indian citizens.
[5] Accordingly, the Board concluded that the Applicant had the normal rights
and obligations of an Indian citizen and therefore was excluded from the definition
of convention refugee pursuant to Article 1(E) of the Refugee Convention. The
Applicant now seeks judicial review of this decision.
ISSUE
[6] Did the Board err in concluding that the Applicant was excluded from the definition
of Convention Refugee pursuant to Article 1(E) of the Refugee Convention?
[7] RELEVANT LEGISLATION
Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 (IRPA)
Exclusion - Refugee Convention
98. A person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
Exclusion par application de la Convention sur les réfugiés
98. La personne visée aux sections E ou F de l''article premier de la Convention
sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
Convention relating to the Status of Refugees, Article 1
Article 1. - Definition of the term "refugee"
E. This Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the rights
and obligations which are attached to the possession of the nationality of that
country.
Article premier. -- Définition du terme "réfugié"
E. Cette Convention ne sera pas applicable à une personne considérée par lesautorités
compétentes du pays dans lequel cette personne a établi sa résidencecomme ayant
les droits et les obligations attachés à la possession de lanationalité de ce
pays.
STANDARD OF REVIEW
[8] The standard of review for decisions as to whether or not an applicant falls
within Article 1(E) of the Refugee Convention was considered by Blais J. in Hassanzadeh
v. Canada (M.C.I.), [2003]_F.C.J. No. 1886 at para 18 ;
The standard of review is that of the patently unreasonable decision, or an error
of law, or a denial of natural justice. The applicant has not argued the latter
possibility, and thus we are left with needing to find a patently unreasonable
finding of fact or an error of law to overturn the decision.
[9] Whether or not an individual will be excluded pursuant to Article 1(E) requires
an examination of all of the circumstances of the case, including:
a) right to return to and reside for an unlimited period of time in the country
of residence,
b) the right to study,
c) the right to work; and
d) the right to access basic social services in that country.
See Shamlou v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J.
No. 1537; Kanesharan v. Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. No. 1278).
[10] It is fairly self evident that the most relevant factor is the right of return
and the nature of the residence.
[11] In other cases involving Indian-born Tibetans the Board consistently has
held that Article 1(E) does not apply. See C.R.D. (Re) [2000] C.R.D.D. No. 160,
F.F.X. (Re) [2000] C.R.D.D. No. 159.
[12] In Kroon v. Canada (M.C.I.), [1995] F.C.J. No. 11) MacKay J held that:
In my view, the purpose of Article 1E is to support regular immigration laws of
countries in the international community, and within the Immigration Act of this
country to support the purposes of that Act and the policies it seeks to legislate,
by limiting refugee claims to those who clearly face the threat of persecution.
If A faces such a threat in his own country, but is living in another country,
with or without refugee status, and there faces no threat of persecution for Convention
reasons, or put another way, A there enjoys the same basic rights of status as
nationals of the second country, the function of Article 1E is to exclude that
person as a potential refugee claimant in a third country. (Underlining added)
[13] IRB Document IND33125.X, dated December 23rd, 1999, and IRB Document IND22524.E,
dated December 21, 1995, provide evidence regarding the requirements for RC''s
IC''s, visas, NORI''s and the internal travel restrictions imposed on Tibetans
regarding certain locations. The Board itself did not take issue with this evidence.
It, however, came to the following conclusion:
Based upon the claimant''s counsel''s admissions and the documentary evidence
before me, I find on a balance of probabilities that the claimant has a right
of return to India, her former country of residence, that Indian authorities would
issue her a Registration Certificate for Tibetans upon her return to India, and
that she would not be at risk of being deported to Tibet. In making this finding,
I also refer to claimant''s testimony at the hearing. Prior to her departure from
India to the United Sates, her father was a member of the Tibetan Government in
Exile Assembly, and her mother was a cabinet minister with the Tibetan Government
in Exile. Her parents who continue to reside in India travelled abroad frequently
and to her knowledge they experienced no difficulties in returning to India after
travelling abroad. In addition, the claimant testified that she experienced no
difficulties in returning to India from the United States in 1993.
[14] I find it difficult to accept this conclusion. On the basis of this evidence,
it is self evident that the Applicant (with respect to the fundamental right of
return and the nature of the residence in India) does not have the same rights
as an Indian citizen. The need for annual RC''s, IC''s, visas, NORI''s and the
prohibition to visit certain locations within India are all antithetical to the
''basic rights of status as nationals''. All of these rights are not permanent
and their renewal is at the discretion of the Indian government. It may be changed
at any time for political, geopolitical (i.e. the need for good relations with
China) or security reasons. The fact that there is no evidence that the Indian
government has so far refused to issue RC''s, IC''s, visas or NORI''s does not
mean it has given up the right to do so. The Tibetans'' existence in India is
thus at the sufferance of the Indian government. As right to stay at sufferance
does not amount to ''the same basic rights of status as nationals'' of India enjoy.
In my view the Board erred in concluding that the Applicant falls within the exclusion
set out in Article 1(E) of the Refugee Convention.
[15] The Respondent argued as an alternative justification for the Board''s decision
that Tibetans may apply for Indian citizenship. However, the evidence on this
point is inconclusive and the Board itself was ambivalent on this point,
Generally, Indian citizenship is not available to Tibetan refugees. There are,
however, some exceptions to this rule, whereby second-generation Tibetans who
are born in India may apply for Indian nationality. Some sources, however, suggest
that there are formal barriers to Tibetan refugees applying for citizenship, as
with all other foreign residents, but the application is likely to be refused.
[16] Given this finding there is no need for me to address this point.
[17] In light of the foregoing reasons this application will be allowed.
ORDER
THIS COURT ORDERS that the decision of the Immigration and Refugee Board dated
December 10, 2003, is set aside and the matter is referred back to another panel
for reconsideration.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1420-04
STYLE OF CAUSE: TENDZIN CHOEZOM v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: September 16, 2004,
REASONS FOR :
DATED: September 30, 2004
APPEARANCES:
Mr. G. Michael Sherritt FOR APPLICANT
Mr. Robert Drummond FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris Rosenberg, Deputy Attorney General of
Canada (Edmonton Regional Office)
Edmonton, Alberta FOR RESPONDENT
'
sentences:
- 'cluster: ISSUES: The issue before the court is whether the person concerned
is a refugee excluded from the definition of a Convention Refugee pursuant to
Article 1(E) of the Refugee Convention. This exclusion applies to individuals
who are recognized by the competent authorities of their country of residence
as having the rights and obligations attached to the possession of that country''s
nationality.'
- 'cluster: SUMMARY: **(1) Facts**
The person concerned, a 30-year-old daughter of Tibetan refugees, was born in
India and is considered a citizen of the People''s Republic of China. She was
required to obtain a Registration Certificate (RC) annually until 1994, when she
was issued an Identity Certificate (IC) instead. The IC is renewed periodically
and is required for her to visit India. She must also obtain a visa and a No Objection
for Return to India (NORI) to return to India, where she would need to obtain
a new RC. While living in India, Tibetans are subject to certain restrictions,
including needing permission from local authorities or the police to travel to
certain locations. The person concerned resided in the United States from 1994
to 2003 and did not claim asylum. She then travelled to Canada in 2003 and claimed
refugee protection on various grounds, including race and religion.
**(2) Issue**
The issue before the court is whether the person concerned is a refugee excluded
from the definition of a Convention Refugee pursuant to Article 1(E) of the Refugee
Convention. This exclusion applies to individuals who are recognized by the competent
authorities of their country of residence as having the rights and obligations
attached to the possession of that country''s nationality.
**(3) Rule**
The court must apply the standard of review for decisions regarding Article 1(E)
of the Refugee Convention, which is that of a patently unreasonable decision or
an error of law. The court must examine all the circumstances of the case, including
the right to return to and reside in the country of residence, the right to study,
work, and access basic social services.
**(4) Analysis**
The court found that the Immigration and Refugee Board (IRB) erred in concluding
that the person concerned was excluded from the definition of a Convention Refugee.
The court noted that the person concerned''s need for annual RCs, ICs, visas,
NORIs, and the prohibition on visiting certain locations within India are antithetical
to the "basic rights of status as nationals." The court also found that the person
concerned''s right to stay in India is at the sufferance of the Indian government
and does not amount to the same basic rights of status as nationals of India enjoy.
The court also considered the Respondent''s alternative justification that Tibetans
may apply for Indian citizenship, but found that the evidence on this point is
inconclusive and the Board itself was ambivalent on this issue.
**(5) Conclusion**
The court allowed the application and set aside the decision of the IRB, referring
the matter back to another panel for reconsideration. The court found that the
IRB erred in concluding that the person concerned was excluded from the definition
of a Convention Refugee pursuant to Article 1(E) of the Refugee Convention.'
- 'cluster: RULES: The court applied the standard of reasonableness to review the
decision, which requires that a decision be transparent, justifiable, and intelligible.
The court found that the Officer''s reasons for refusing the application did not
meet this standard, as they were based on a subjective assessment of the person
concerned''s qualifications and background, without providing sufficient explanation
or justification for the decision.'
- source_sentence: 'cluster: CONCLUSION: Wu v. Royal Bank of Canada
Court (s) Database
Federal Court Decisions
Date
2008-08-07
Neutral citation
2008 FC 935
File numbers
T-351-08
Decision Content
Date: 20080807
Docket: T-351-08
Citation: 2008 FC 935
Vancouver, British Columbia, August 7, 2008
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
LI MIN ("AMANDA") WU
Applicant
and
ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] The present motion arises in the context of an application for judicial review
in respect of the decision of Adjudicator Petersen made pursuant to the Canada
Labour Code dismissing the Applicant’s complaint that she was unjustly dismissed
by the Royal Bank of Canada (RBC). The Applicant seeks an order compelling answers
to written cross-examination questions that were refused by RBC on the grounds
of relevance.
Background
[2] The Applicant’s employment as a credit adjudication agent with RBC was terminated
on July 12, 2006 based on allegations of misappropriation of funds. The Applicant
filed a complaint of unjust dismissal and the matter proceeded to adjudication
over a period of six days in July 2007. Adjudicator Petersen heard the evidence
of a number of witnesses, including the Applicant, who testified on her own behalf.
In a 24 page decision dated February 1, 2008, Adjudicator Peterson dismissed the
Applicant’s complaint.
[3] The Applicant filed a Notice of Application on March 3, 2008 for an order
quashing the Adjudicator’s decision and referring the matter back for redetermination.
Four main grounds are cited. First, the Adjudicator acted without or beyond jurisdiction
by upholding the Applicant’s dismissal for non-work-related conduct and contrary
to RBC’s policies, practices and guidelines for discipline. Second, the Adjudicator
failed to observe the principle of natural justice and procedural fairness, and
in particular failed to provide an interpreter. Third, the Adjudicator erred in
law in making his decision. Fourth, the Adjudicator based his decision on erroneous
findings of fact made in a perverse or capricious manner.
[4] The Applicant filed an affidavit in support of her application on March 28,
2008. Paragraphs 2 to 28 of the affidavit consist of facts leading to the Applicant’s
dismissal. It is unclear whether these facts were before the adjudicator, or whether
the Applicant is attempting to introduce new evidence. At paragraphs 31 to 35,
the Applicant complains about the conduct of the hearing before the Adjudicator.
She says that an interpreter was not provided to her at the hearing. She also
claims that she was visibly stressed and anxious during cross-examination by RBC’s
counsel. She further alleges that she was denied an opportunity to speak to her
lawyer before the Adjudicator ruled that the speaking notes which she was referring
to during her testimony should be entered into evidence.
[5] RBC responded by filing the affidavits of Joan Nicholson, Jennifer Roper and
Bob Montgomery. In the last four paragraphs of her two page affidavit, Ms. Nicholson,
Manager of Cards Contact Centre with RBC in Vancouver, addresses four matters
raised in the Applicant’s affidavit. First, she states that the Applicant was
not promoted to the Visa Credit Department, as asserted by the Applicant, but
rather that it was considered a lateral move. Second, in response to the Applicant’s
assertion that she received no warning that money transferring activity was grounds
for discipline, Ms. Nicholson points to the RBC Code of Conduct, which refers
specifically to misappropriation. Third, in answer to the Applicant’s assertion
that she was denied progressive discipline, Ms. Nicholson declares that RBC has
a consistent practice of terminating employees immediately in cases of misappropriation
or dishonesty. Fourth, Ms. Nicholson observes that the Applicant did not appear
to have any difficulty understanding the proceedings before the Adjudicator.
[6] Ms. Roper, who was co-counsel for RBC at the hearing before the Adjudicator,
filed an affidavit to respond to the Applicant’s allegations of procedural unfairness.
She declares that at no time during the hearing before the Adjudicator did the
Applicant request the assistance of an interpreter. Ms. Roper states that she
did not observe the Applicant experiencing any difficulty in understanding the
proceeding because of language issues. Ms. Roper also fleshes out the facts leading
the Adjudicator’s decision to admit the Applicant’s speaking notes into evidence.
[7] The Applicant served the Respondent with written cross-examination questions.
There are 84 questions addressed to Ms. Nicholson and 37 questions to Ms. Roper.
On June 27, 2008, Ms. Nicholson and Ms. Roper provided their written responses
to the written cross-examination. In a cover letter to the written responses,
counsel for the Respondent objected to a number of the Applicant’s written examination
questions and advised that she had instructed Ms. Nicholson and Ms. Roper to not
answer the objectionable questions.
[8] By this motion, the Applicant seeks an order compelling Ms. Nicholson to answer
questions 1, 2, 3, 9, 12, 13, 20, 27, 28, 29, 30, 31, 32, 33, 40, 41, 42, 45,
47, 49, 51, 53, 55, 56, 57, 58, 81, 82, 83, and 84, and an order compelling Ms.
Roper to answer questions 1, 2, 6, 7, 8, 9, 11, 12, 13, 14, 15, 17, 18, 19, 20,
21, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, and 37, as set out in the
two Written Examinations dated June 23, 2008. In response to the motion, RBC conceded
that certain questions initially refused were proper cross-examination questions
and provided answers by supplementary affidavits sworn by Ms. Nicholson and Ms.
Roper. It maintained its objections regarding the balance of the questions.
Analysis
[9] The Applicant submits that the questions posed in the written cross-examinations
are directed to facts sworn by the affiants in their affidavits, and are factually
relevant to the judicial review application. RBC counters that the Applicant is
attempting to re-litigate her claim, and many of the questions posed to its two
affiants are outside the proper scope of cross-examination. It submits that even
when a fact has been sworn to in a proceeding, it does not have legal relevance
unless its existence or non-existence can assist in determining whether or not
the remedy sought can be granted: Merck Frosst Can. Inc. v. Canada (Min. of Health)
(1997), 80 C.P.R. (3d) 550 (T.D.); affirmed (1999), 3 C.P.R. (4th) 286 (Fed. C.A.)
(“Merck”).
[10] The affidavit material in an application for judicial review should be aimed
at providing the reviewing court with a record of the proceedings before the Adjudicator,
and at supporting an argument going to procedural fairness or jurisdiction. The
purpose of a judicial review is to review the decision on the basis of the record
before the tribunal, and not to determine, by trial de novo, questions that were
not fully canvassed in evidence before it. In Ochapowace First Nation v. Canada
(Attorney General), 2007 FC 920, the Court described the rationale for this purpose
as follows:
[10] The rationale for that rule is well known. To allow additional material to
be introduced at judicial review that was not before the decision maker would
in effect transform the judicial review hearing into a trial de novo. The purpose
of a judicial review application is not to determine whether the decision of a
tribunal was correct in absolute terms but rather to determine whether its decision
was correct on the basis of the record before it: Chopra, at para 5; Canadian
Tire Corp. v. Canadian Bicycle Manufacturers Assn., 2006 FCA 56 (CanLII), 2006
FCA 56 at para 13.
[11] Upon carefully reviewing the parties’ affidavits, I conclude that many of
the Applicant’s cross-examination questions go beyond testing the affiant’s credibility,
beyond establishing the record below for the reviewing court, and beyond the issues
of procedural fairness. A party is not entitled to exploit cross-examination in
order to correct deficiencies in the evidence before the decision-maker.
[12] Bearing these principles in mind, I now turn to the questions addressed to
Ms. Nicholson and Ms. Roper.
Written Examination of Ms. Nicholson
Questions 1 to 4
Ms. Nicholson has provided a response to these questions in her affidavit sworn
on July 21, 2008. No further response is required.
Question 9
Ms. Nicholson has provided a response to this question in her affidavit sworn
on July 21, 2008. No further response is required.
Questions 12 and 13
Ms. Nicholson has provided a response in her affidavit sworn on July 21, 2008.
Question 20
According to the Applicant, this question seeks to determine “what the Applicant
knew, how she knew it, and when she knew it” with regard to misappropriation and
kiting. The question is not formally relevant since no deponent has sworn any
facts on this issue, or questioned the evidence that was before Adjudicator Petersen
with respect to whether the terms of misappropriation and kiting were thoroughly
explained to Ms. Wu.
Questions 27 and 28
The questions are not formally relevant since no deponent has questioned the evidence
that was before Adjudicator Petersen with respect to the definitions of “kiting”
contained in the Code of Conduct.
Questions 29 and 30
The questions are not relevant. Cross-examination on an affidavit is limited to
the facts sworn to by the deponents. Ms. Nicholson’s Affidavit does not contain
any facts relating to Ms. Wu’s money transferring activities. In addition, Ms.
Wu, in her affidavit, does not take issue with the evidence before Adjudicator
Petersen on whether her money transferring activities resulted in money being
transferred to another banking institution.
Questions 31 and 32
Adjudicator Petersen’s decision sets out the record of the evidence before him
on the issue of kiting, misappropriation and the reasons for the Applicant’s termination
of employment. The questions are not legally or formally relevant.
Question 33
The question is irrelevant as it does not go to facts sworn to by Ms. Nicholson
or the deponent of any other affidavits filed in the proceeding.
Questions 40 to 42, 45, 47 and 49
Ms. Nicholson has provided a response to these questions in her affidavit sworn
on July 21, 2008 outlining the evidence that was before Adjudicator Petersen.
No further response is required.
Question 51
The Applicant inquires whether RBC terminates all employees who are guilty in
situations of misappropriation (emphasis added). The question should be answered
in light of the assertion made by Ms. Nicholson at paragraph 6 of her affidavit
that RBC has a consistent practice of termination. The ultimate relevance of the
question and answer should be left to the judge hearing the application.
Question 53
The question is not formally relevant since no deponent has questioned any evidence
that was before Adjudicator Petersen with respect to comparing Ms. Wu’s termination
for misappropriation with the discipline of other employees caught in situations
of misappropriation. The question also goes beyond the proper scope of cross-examination
and is an attempt to re‑litigate Ms. Wu’s dismissal.
Questions 55 to 58
The questions are not legally or formally relevant. On the face of the decision,
Adjudicator Petersen noted that the Applicant had been summarily terminated for
cause and based his decision on whether or not the Respondent had grounds for
summary termination.
Questions 81 to 84
The questions are improper since they have no bearing on Ms. Nicholson’s ability
to observe whether Ms. Wu had difficulty understanding the proceedings. Question
83 is also irrelevant relevant. Question 84 has already been answered in Ms. Nicholson’s
Answers to Written Examination dated June 26, 2008.
Written Examination of Ms. Roper
Questions 1, 2 and 23:
With respect to question 1, the issue of the pre-hearing applications is only
relevant in so far as they relate to whether Ms. Wu required an interpreter. As
such, the nature of the other pre-hearing applications has no bearing on the outcome
of the litigation. This question is nothing more than a fishing expedition. As
for questions 2 and 23, they are irrelevant.
Questions 6 and 7:
The questions are irrelevant to the judicial review proceedings since the answer
to these questions do not assist in determining whether or not the remedies sought
by the Applicant can be granted.
Questions 8 and 9:
The questions have no bearing on Ms. Roper’s ability to comment on her observations
while in attendance at the hearing. Whether Ms. Roper herself has ever learned
a foreign language has no bearing on the issue of whether Ms. Wu had difficulty
understanding the proceedings, and no bearing on whether an interpreter should
have been provided.
Questions 11 to 15:
The application for judicial review does not allege that Adjudicator Petersen’s
alleged failure to provide equal time to the parties breached the Applicant’s
right to procedural fairness or breached the principles of natural justice. On
that basis, the questions are not relevant.
Questions 17 to 21:
This question asks Ms. Roper to comment on what factors led to her concerns regarding
Ms. Wu’s capacity to understand English. Ms Roper does not depose that she herself
expressed any concern. Question 17 is therefore not relevant since it is outside
the facts sworn to by Ms. Roper. Questions 18 to 21 have been answered in Ms.
Roper’s Answers to Written Examination dated June 27, 2008.
Question 24:
The Respondent concedes that this is a proper cross-examination question. Ms.
Roper has now provided an answer to this question in her Affidavit sworn on July
18, 2008. No further response is required.
Questions 26 to 29:
Ms. Roper answered these questions in her Answers to Written Examination dated
June 27, 2008. No further response is required.
Questions 30 to 34:
The general nature of the questions asked of Ms. Wu is not relevant. Questions
32 is improper because it calls for a conclusion or opinion. Question 33 is irrelevant.
Questions 36 and 37:
The questions are improper as they go beyond the facts sworn to by Ms. Roper or
the deponent of any other affidavits filed in the proceeding. In any event, the
question appear to be irrelevant to any issues in the application.
Conclusion
[13] The Respondent does not object to the Applicant filing a supplement to the
Applicant’s Record, provided any supplement is limited to the answers sought in
this Motion. In the circumstances, the Applicant is granted leave to serve and
file a Supplementary Applicant’s Record.
[14] In light of the divided success of the parties, in that RBC conceded that
certain questions refused should be answered, and has been ordered to answer an
additional one, I conclude that the parties should bear their own costs on this
motion.
ORDER
THIS COURT ORDERS that:
1. Ms. Joan Nicholson, affiant of the Respondent, Royal Bank of Canada, shall
answer question 51 of the Applicant’s written examination within 10 days of the
date of this Order.
2. The Applicant is granted leave to serve and file a Supplementary Applicant’s
Record, limited to the additional answers provided by the Royal Bank of Canada,
within 20 days of service of the answer to question 51 of Ms. Nicholson’s written
examination.
3. The Respondent shall serve and file the Respondent’s Record within 20 days
of service of the Applicant’s Supplementary Record, or the expiration of the time
for doing so, whichever is earlier.
4. The motion is otherwise dismissed, without costs.
“Roger R. Lafrenière”
Prothonotary
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-351-08
STYLE OF CAUSE: LI MIN (“AMANDA”) WU v.
ROYAL BANK OF CANADA
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 7, 2008
REASONS FOR ORDER
AND ORDER: LAFRENIÈRE P.
DATED: August 7, 2008
APPEARANCES:
Thomas S.A. Deprophetis
FOR THE APPLICANT
Lorene Novakowski
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Coutts Pulver LLP
Vancouver, British Columbia
FOR THE APPLICANT
Fasken Martineau DuMoulin LLP
Vancouver, British Columbia
FOR THE RESPONDENT
'
sentences:
- 'cluster: SUMMARY: **(1) Facts**
The person concerned, an employee of the Royal Bank of Canada (RBC), was dismissed
from her job as a credit adjudication agent on July 12, 2006, due to allegations
of misappropriation of funds. She filed a complaint of unjust dismissal, which
was heard by an adjudicator. The adjudicator dismissed her complaint in a 24-page
decision. The person concerned then applied for judicial review of the adjudicator''s
decision, citing four main grounds: the adjudicator acted without or beyond jurisdiction,
failed to observe the principle of natural justice and procedural fairness, erred
in law, and based his decision on erroneous findings of fact. The person concerned
also sought to compel answers to written cross-examination questions that were
refused by RBC on the grounds of relevance.
RBC filed affidavits from its employees, Joan Nicholson and Jennifer Roper, in
response to the person concerned''s allegations. The person concerned then served
written cross-examination questions on Nicholson and Roper, but RBC objected to
many of the questions, advising that its employees would not answer them. The
person concerned brought a motion to compel Nicholson and Roper to answer the
questions.
**(2) Issue**
The issue before the court was whether the person concerned''s written cross-examination
questions were relevant and should be answered by Nicholson and Roper. The person
concerned argued that the questions were directed to facts sworn by the affiants
in their affidavits and were factually relevant to the judicial review application.
RBC countered that the person concerned was attempting to re-litigate her claim
and that many of the questions posed to its employees were outside the proper
scope of cross-examination.
**(3) Rule**
The court ruled that many of the person concerned''s cross-examination questions
went beyond testing the affiants'' credibility, establishing the record below
for the reviewing court, and addressing the issues of procedural fairness. The
court held that a party is not entitled to exploit cross-examination in order
to correct deficiencies in the evidence before the decision-maker. The court ordered
that Nicholson answer question 51 of the person concerned''s written examination,
which inquired about RBC''s practice of terminating employees who are guilty of
misappropriation.
The court also granted the person concerned leave to serve and file a Supplementary
Applicant''s Record, limited to the additional answers provided by RBC. The court
ordered RBC to serve and file the Respondent''s Record within 20 days of service
of the Applicant''s Supplementary Record. The motion was otherwise dismissed without
costs.
**(4) Analysis**
The court''s analysis was based on the principles of judicial review and the proper
scope of cross-examination. The court held that the purpose of a judicial review
application is to review the decision on the basis of the record before the tribunal,
and not to determine, by trial de novo, questions that were not fully canvassed
in evidence before it. The court also noted that a party is not entitled to exploit
cross-examination in order to correct deficiencies in the evidence before the
decision-maker.
In analyzing the specific questions posed by the person concerned, the court held
that many of them were not formally relevant, were outside the proper scope of
cross-examination, or were attempts to re-litigate the person concerned''s dismissal.
However, the court found that question 51, which inquired about RBC''s practice
of terminating employees who are guilty of misappropriation, was relevant and
should be answered by Nicholson.
**(5) Conclusion**
The court concluded that the person concerned''s motion was partially successful,
in that RBC conceded that certain questions refused should be answered and was
ordered to answer an additional question. The court therefore ordered the parties
to bear their own costs on the motion. The court also granted the person concerned
leave to serve and file a Supplementary Applicant''s Record, limited to the additional
answers provided by RBC.'
- 'cluster: CONCLUSION: The court concluded that the person concerned''s motion
was partially successful, in that RBC conceded that certain questions refused
should be answered and was ordered to answer an additional question. The court
therefore ordered the parties to bear their own costs on the motion. The court
also granted the person concerned leave to serve and file a Supplementary Applicant''s
Record, limited to the additional answers provided by RBC.'
- 'cluster: ANALYSIS: The court analyzed the person concerned''s explanations for
his failure to disclose the reavailments and found them to be unsatisfactory.
The court noted that the person concerned had provided conflicting explanations
and that there was no evidence to support his claim of being mentally ill when
he returned to Bangladesh. The court also found that the person concerned''s wife
could have organized the visas and tickets for the trip to Canada, and there was
no evidence of cultural norms or other issues that might have stood in her way.The
court concluded that the Board''s decision was reasonable and that the person
concerned''s multiple reavailments to Bangladesh undermined the credibility of
his alleged subjective fear.'
- source_sentence: 'cluster: CONCLUSION: Bacon St-Onge v. Conseil des Innus de Pessamit
Court (s) Database
Federal Court Decisions
Date
2018-06-22
Neutral citation
2018 FC 655
File numbers
T-2135-16
Decision Content
Date: 20180622
Docket: T-2135-16
Citation: 2018 FC 655
[ENGLISH TRANSLATION]
Montréal, Quebec, June 22, 2018
PRESENT: The Honourable Madam Justice St-Louis
BETWEEN:
JÉRÔME BACON ST-ONGE
Applicant
and
LE CONSEIL DES INNUS DE PESSAMIT
RENÉ SIMON
ÉRIC CANAPÉ
GÉRALD HERVIEUX
DIANE RIVERIN
JEAN-NOËL RIVERIN
RAYMOND ROUSSELOT
MARIELLE VACHON
Respondents
ORDER AND REASONS
I. Background
[1] On December 21, 2017, the Court upheld the application for judicial review
submitted by the Applicant, Jérôme Bacon St-Onge and, in particular, revoked the
resolution adopted by the band council on March 8, 2016, adjudged the 2015 Code
to be invalid, and voided the election held on August 17, 2016. The Court then
asked the parties to make submissions concerning costs.
[2] On January 22, 2018, the Respondents filed an appeal of this judgment with
the Federal Court of Appeal [FCA]. At the same time, they also filed a motion
to stay the execution of said judgment (docket A-42-18), a motion that FCA dismissed
on April 23, 2018.
[3] On February 6, 2018, the Applicant made his submissions concerning costs.
He included an affidavit from Mr. Boulianne and filed Exhibit 1, which included
three invoices and two statements of account from the firm of Neashish & Champoux
s.e.n.c., indicating that he had been invoiced an amount totalling $82,544.35.
On March 23, 2018, the Respondents submitted their representations concerning
costs. They attached three items: the order from Prothonotary Morneau refusing
the application for the Applicant’s interim costs, news articles, and the notice
of appeal of the aforementioned decision dated December 21, 2017. Finally, on
April 4, 2018, the Applicant submitted his response concerning costs.
[4] The parties did not submit a bill of costs and hence the Court does not know
the estimated amount of costs that would be granted according to Column III of
Tariff B, if Rule 407 of the Federal Courts Rules, SOR/98-106 [the Rules] were
applied.
II. Position of the parties
[5] Mr. Bacon St-Onge is requesting payment of costs on the attorney-client basis,
thus covering all of the professional and legal fees incurred. In support of this
request, he basically presented five (5) arguments, namely (1) his application
for judicial review was upheld; (2) the application was brought in the public’s
interest and it went beyond the scope of his individual interests; (3) unlike
the Respondents, he is not in a position to have the First Nation reimburse the
legal fees; (4) the case required a considerable amount of work because the facts
and applicable law were complex and because the cases consisted of more than 2,000
pages; and (5) the Respondents unjustifiably refused to withdraw from a proceeding
that was condemned in advance.
[6] Mr. Bacon St-Onge also asked the Court (1) to reserve his right to again apply
to a court of competent jurisdiction to claim any order and any additional sum
required with respect to costs for the Respondents’ application for review; and
(2) to exempt him from all the fees and expenses to be paid to the Respondents
as part of this claim, the principal claim and any other ancillary or incidental
claim in this case and in the appeal case.
[7] To begin with, the Court confirms that it will not decide on these last two
claims related either to possible future cases or to the appeal proceedings. Thus,
this decision will be limited to the application for costs related to the litigation
settled by the judgment delivered last December 21.
[8] The Respondents reply that the expenses cannot be granted to the Applicant
basically because (1) Prothonotary Morneau had refused the Applicant’s request
for interim costs and there is thus res judicata on the question of expenses;
and (2) the appeal dated December 21, 2017, suspends the awarding of costs and
said costs will only be payable by the Applicant if their appeal is dismissed.
[9] The Respondents add that, should costs be granted, (1) they must be calculated
according to Column III of Tariff B of the Rules; (2) the questions raised in
this case are not of concern to Band members, do not fall outside the individual
interests of the Applicant, who showed interest in standing for election, thus
showing that he had an individual interest in voiding the elections; (3) the Applicant
unreasonably delayed bringing his complaint and the voters and candidates were
greatly inconvenienced by the election’s invalidity; (4) the invoices that the
Applicant submitted in support of his application for costs do not provide the
dates and hours worked in the case and have no probative value, being domestic
writings; and (5) the questions to be decided are not particularly complicated.
[10] The Applicant replies that Prothonotary Morneau’s order decided on the application
for interim costs, proceedings separate from the awarding of costs. The criteria
that underlie the awarding of costs are different and, therefore, there is no
res judicata in this case. Finally, the Applicant points out that he had no choice
other than to turn to the courts because the Respondents refused to consider the
Band members’ remarks concerning the illegality of the process for amending the
1994 Code. He thus acted for the good of all Band members. In response to the
arguments concerning the format of the invoices submitted, he maintains that they
are unsigned writings used in the course of business activities and that they
are thus proof of their content.
[11] Finally, the Applicant maintains that costs can be granted even if the decision
is under appeal (Martselos v. Salt River Nation #195, 2008 FCA 221 at paragraphs
51 to 55).
III. Discussion
[12] We should first deal with two of the arguments raised by the Respondents:
the one related to the thing adjudicated and the one related to the effect of
the appeal and the stay motion that were lodged.
[13] Thus, the Court agrees with the Applicant’s position and concludes that Prothonotary
Morneau’s decision on the interim costs is not res judicata on the awarding of
costs at the end of the litigation. At least one of the three criteria established
in Angle v. M.N.R., [1975] 2 SCR 248, the one requiring that the same question
has been decided, is not satisfied here. The criteria related to a decision on
the application for interim costs are different from those considered within the
framework of the awarding of costs, and thus it cannot have res judicata.
[14] As for the effect of the stay motion and the appeal that the Respondents
presented to FCA, the Court notes that the Respondents did not submit any case
law to support their argument. First, FCA dismissed the stay motion, and thus
it is not necessary to focus on its implications with respect to the awarding
of costs. Next, our Court has already agreed that appealing a Federal Court decision
does not prevent the taxation of costs in the first instance (Halford v. Seed
Hawk Inc., 2004 FC 1259 at paragraph 36). Thus, the Court has not been convinced
that the appeal of the decision dated December 21, 2017, suspends the awarding
of costs.
[15] The Court will therefore decide on the awarding of costs and, in this regard,
the Court is convinced that here, the costs must be granted in favour of the Applicant
because his application for judicial review was upheld (Ticketnet Corp v. The
Queen, [1999] FCA No. 1102, 99 DTC 5429).
[16] The awarding of costs between parties is set out in sections 400 to 414 of
Part II of Rules. To award costs, courts try to establish a fair balance between
three principal objectives, namely “providing compensation, promoting settlement
and deterring abusive behaviour” (Air Canada v. Thibodeau, 2007 FCA 115 at paragraph
24). Thus, according to Rule 407, unless the Court orders otherwise, the costs
between parties are taxed in compliance with Column III of Tariff Table B.
[17] As well, subsection 400(1) of the Rules states that the Court “shall have
full discretionary power over the amount and allocation of costs and the determination
of by whom they are to be paid.” The Court’s vast discretionary power over the
awarding of costs has only two exceptions, related to representative actions and
immigration cases, which are not at issue in this case.
[18] Otherwise, the Court enjoys vast discretionary power (Salt River Nation #195
v. Martselos, 2008 FCA 221 at paragraphs 52 and 53). The factors that the Court
may take into account are stated in subsection 400(3) of the Rules, the text of
which is annexed. They include some of the factors raised by the Applicant, such
as the importance and complexity of the issues (400(3)(c)), the amount of work
(400(3)(g)) and whether the public interest in having the proceeding litigated
justifies a particular award of costs (400(3)(h)).
[19] The Court has the power to award a gross sum or to issue a more general order
(Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc. (CA), 2002 FCA 417
at paragraphs 8 to 10).
[20] The Court must therefore decide whether the costs will be assessed through
taxation or by the awarding of a gross sum and must also decide whether there
is cause to award a specific, higher amount either on the attorney-client basis
or on the basis of the public interest.
[21] To begin with, the Court rules out the payment of costs on the attorney-client
basis because nothing in the case indicates that the Respondents demonstrated
“reprehensible, scandalous or outrageous conduct” (Young v. Young, [1993] 4 SCR
3 at p. 134; Quebec (Attorney General) v. Lacombe, 2010 SCC 38 at paragraph 67).
[22] As for a specific amount on the basis of public interest, the Supreme Court
established, in the Carter decision (Carter v. Canada (Attorney General), 2015
SCC 5 at paragraph 140), a two-component criterion for awarding special costs
to a successful party representing the public interest:
. . . First, the case must involve matters of public interest that are truly exceptional.
It is not enough that the issues raised have not previously been resolved or that
they transcend the individual interests of the successful litigant: they must
also have a significant and widespread societal impact. Second, in addition to
showing that they have no personal, proprietary or pecuniary interest in the litigation
that would justify the proceedings on economic grounds, the plaintiffs must show
that it would not have been possible to effectively pursue the litigation in question
with private funding. In those rare cases, it will be contrary to the interests
of justice to ask the individual litigants (or, more likely, pro bono counsel)
to bear the majority of the financial burden associated with pursuing the claim.
[23] In this case, the Court notes that determining the electoral code’s validity
is as much an interest for the Band as it is for the Applicant because the latter
was a candidate in the elections whose cancellation he requested. Thus the Applicant
cannot maintain that he had no individual interest in the litigation and here,
at least one of the Supreme Court’s aforementioned criteria has not been satisfied.
[24] In addition, it seems fair to argue that the Applicant is not in a position
to get the Band to reimburse him for his legal fees. The Respondents have not
submitted evidence showing that they paid their legal fees (Bellegarde v. Poitras,
2009 FC 1212 at paragraph 8) and it seems plausible to find that they are not
paying them themselves, since they are members of the Band council.
[25] Finally, the Court can find only that the workload and the complexity of
the case or that the behaviour of the Respondents, having continued the proceedings,
in themselves justify the awarding of special costs.
[26] Hence, because the electoral code’s validity is effectively also a question
of interest for the Band and because the Applicant is solely responsible for the
litigation costs, the Court is convinced that the situation is an argument for
awarding costs higher than those in Column III of Tariff B. In the absence of
the parties’ bill of costs, the Court finds it difficult to set a “higher” amount
by gross sum. Therefore, the Court will instead grant the Applicant costs through
taxation, according to the upper band of Column V of Tariff B.
JUDGMENT in file T-2135-16
THIS COURT’S JUDGMENT is that:
The Respondents are to pay costs to the Applicant according to the upper band
of Column V of Tariff B;
“Martine St-Louis”
Judge
Rule 400(3)
Factors in awarding costs
(3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding;
(b) the amounts claimed and the amounts recovered;
(c) the importance and complexity of the issues;
(d) the apportionment of liability;
(e) any written offer to settle;
(f) any offer to contribute made under rule 421;
(g) the amount of work;
(h) whether the public interest in having the proceeding litigated justifies a
particular award of costs;
(i) any conduct of a party that tended to shorten or unnecessarily lengthen the
duration of the proceeding;
(j) the failure by a party to admit anything that should have been admitted or
to serve a request to admit;
(k) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(l) whether more than one set of costs should be allowed, where two or more parties
were represented by different solicitors or were represented by the same solicitor
but separated their defence unnecessarily;
(m) whether two or more parties, represented by the same solicitor, initiated
separate proceedings unnecessarily;
(n) whether a party who was successful in an action exaggerated a claim, including
a counterclaim or third party claim, to avoid the operation of rules 292 to 299;
(n.1) whether the expense required to have an expert witness give evidence was
justified given
(i) the nature of the litigation, its public significance and any need to clarify
the law,
(ii) the number, complexity or technical nature of the issues in dispute, or
(iii) the amount in dispute in the proceeding; and
(o) any other matter that it considers relevant.
Règle 400(3)
Facteurs à prendre en compte
(3) Dans l’exercice de son pouvoir discrétionnaire en application du paragraphe
(1), la Cour peut tenir compte de l’un ou l’autre des facteurs suivants :
a) le résultat de l’instance;
b) les sommes réclamées et les sommes recouvrées;
c) l’importance et la complexité des questions en litige;
d) le partage de la responsabilité;
e) toute offre écrite de règlement;
f) toute offre de contribution faite en vertu de la règle 421;
g) la charge de travail;
h) le fait que l’intérêt public dans la résolution judiciaire de l’instance justifie
une adjudication particulière des dépens;
i) la conduite d’une partie qui a eu pour effet d’abréger ou de prolonger inutilement
la durée de l’instance;
j) le défaut de la part d’une partie de signifier une demande visée à la règle
255 ou de reconnaître ce qui aurait dû être admis;
k) la question de savoir si une mesure prise au cours de l’instance, selon le
cas :
(i) était inappropriée, vexatoire ou inutile,
(ii) a été entreprise de manière négligente, par erreur ou avec trop de circonspection;
l) la question de savoir si plus d’un mémoire de dépens devrait être accordé lorsque
deux ou plusieurs parties sont représentées par différents avocats ou lorsque,
étant représentées par le même avocat, elles ont scindé inutilement leur défense;
m) la question de savoir si deux ou plusieurs parties représentées par le même
avocat ont engagé inutilement des instances distinctes;
n) la question de savoir si la partie qui a eu gain de cause dans une action a
exagéré le montant de sa réclamation, notamment celle indiquée dans la demande
reconventionnelle ou la mise en cause, pour éviter l’application des règles 292
à 299;
n.1) la question de savoir si les dépenses engagées pour la déposition d’un témoin
expert étaient justifiées compte tenu de l’un ou l’autre des facteurs suivants
:
(i) la nature du litige, son importance pour le public et la nécessité de clarifier
le droit,
(ii) le nombre, la complexité ou la nature technique des questions en litige,
(iii) la somme en litige;
o) toute autre question qu’elle juge pertinente.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-2135-16
STYLE OF CAUSE:
JÉRÔME BACON ST-ONGE v. THE CONSEIL DES INNUS DE PESSAMIT, RENÉ SIMON, ÉRIC CANAPÉ,
GÉRALD HERVIEUX, DIANE RIVERIN, JEAN-NOEL RIVERIN, RAYMON ROUSSELOT, MARIELLE
VACHON
REASONS FOR ORDER AND ORDER:
ST-LOUIS J.
DATED:
June 22, 2018
WRITTEN SUBMISSIONS BY:
François Boulianne
FOR THE APPLICANT
Kenneth Gauthier
For the respondents
SOLICITORS OF RECORD:
Neashish & Champoux, s.e.n.c.
Wendake, Quebec
FOR THE APPLICANT
Kenneth Gauthier
Counsel
Baie-Comeau, Quebec
For the respondents
'
sentences:
- 'cluster: RULES: The Immigration and Refugee Protection Act states that a foreign
national against whom a removal order is made must leave Canada immediately and
must be enforced as soon as is reasonably practicable (Section 48(2)). However,
enforcement officers have a limited discretion to defer the removal of persons
who have been ordered to leave Canada, particularly in cases involving compelling
personal circumstances.'
- 'cluster: ANALYSIS: The Court analyzed the factors to be considered in awarding
costs, as set out in Rule 400(3) of the Federal Courts Rules. The Court considered
the importance and complexity of the issues, the amount of work, and the public
interest in having the proceeding litigated. The Court also considered the conduct
of the parties, including the Respondents'' refusal to consider the Band members''
remarks concerning the illegality of the process for amending the 1994 Code. The
Court found that the Applicant was solely responsible for the litigation costs
and that the situation justified awarding costs higher than those in Column III
of Tariff B. However, the Court did not find that the case met the two-component
criterion for awarding special costs to a successful party representing the public
interest, as established by the Supreme Court in the Carter decision.'
- 'cluster: CONCLUSION: The Court concluded that the Respondents were to pay costs
to the Applicant according to the upper band of Column V of Tariff B. The Court''s
decision was based on its discretionary power to award costs, taking into account
the factors set out in Rule 400(3) of the Federal Courts Rules. The Court''s decision
was intended to provide a fair balance between the parties and to reflect the
complexity and importance of the issues in the case.'
pipeline_tag: sentence-similarity
library_name: sentence-transformers
---
# SentenceTransformer based on nomic-ai/nomic-embed-text-v1.5
This is a [sentence-transformers](https://www.SBERT.net) model finetuned from [nomic-ai/nomic-embed-text-v1.5](https://huggingface.co/nomic-ai/nomic-embed-text-v1.5). It maps sentences & paragraphs to a 768-dimensional dense vector space and can be used for semantic textual similarity, semantic search, paraphrase mining, text classification, clustering, and more.
## Model Details
### Model Description
- **Model Type:** Sentence Transformer
- **Base model:** [nomic-ai/nomic-embed-text-v1.5](https://huggingface.co/nomic-ai/nomic-embed-text-v1.5)
- **Maximum Sequence Length:** 8192 tokens
- **Output Dimensionality:** 768 tokens
- **Similarity Function:** Cosine Similarity
### Model Sources
- **Documentation:** [Sentence Transformers Documentation](https://sbert.net)
- **Repository:** [Sentence Transformers on GitHub](https://github.com/UKPLab/sentence-transformers)
- **Hugging Face:** [Sentence Transformers on Hugging Face](https://huggingface.co/models?library=sentence-transformers)
### Full Model Architecture
```
SentenceTransformer(
(0): Transformer({'max_seq_length': 8192, 'do_lower_case': False}) with Transformer model: NomicBertModel
(1): Pooling({'word_embedding_dimension': 768, 'pooling_mode_cls_token': False, 'pooling_mode_mean_tokens': True, 'pooling_mode_max_tokens': False, 'pooling_mode_mean_sqrt_len_tokens': False, 'pooling_mode_weightedmean_tokens': False, 'pooling_mode_lasttoken': False, 'include_prompt': True})
)
```
## Usage
### Direct Usage (Sentence Transformers)
First install the Sentence Transformers library:
```bash
pip install -U sentence-transformers
```
Then you can load this model and run inference.
```python
from sentence_transformers import SentenceTransformer
# Download from the 🤗 Hub
model = SentenceTransformer("simonosgoode/nomic_embed_fine_tune_law_1.5")
# Run inference
sentences = [
'cluster: CONCLUSION: Bacon St-Onge v. Conseil des Innus de Pessamit\nCourt (s) Database\nFederal Court Decisions\nDate\n2018-06-22\nNeutral citation\n2018 FC 655\nFile numbers\nT-2135-16\nDecision Content\nDate: 20180622\nDocket: T-2135-16\nCitation: 2018 FC 655\n[ENGLISH TRANSLATION]\nMontréal, Quebec, June 22, 2018\nPRESENT: The Honourable Madam Justice St-Louis\nBETWEEN:\nJÉRÔME BACON ST-ONGE\nApplicant\nand\nLE CONSEIL DES INNUS DE PESSAMIT\nRENÉ SIMON\nÉRIC CANAPÉ\nGÉRALD HERVIEUX\nDIANE RIVERIN\nJEAN-NOËL RIVERIN\nRAYMOND ROUSSELOT\nMARIELLE VACHON\nRespondents\nORDER AND REASONS\nI. Background\n[1] On December 21, 2017, the Court upheld the application for judicial review submitted by the Applicant, Jérôme Bacon St-Onge and, in particular, revoked the resolution adopted by the band council on March 8, 2016, adjudged the 2015 Code to be invalid, and voided the election held on August 17, 2016. The Court then asked the parties to make submissions concerning costs.\n[2] On January 22, 2018, the Respondents filed an appeal of this judgment with the Federal Court of Appeal [FCA]. At the same time, they also filed a motion to stay the execution of said judgment (docket A-42-18), a motion that FCA dismissed on April 23, 2018.\n[3] On February 6, 2018, the Applicant made his submissions concerning costs. He included an affidavit from Mr. Boulianne and filed Exhibit 1, which included three invoices and two statements of account from the firm of Neashish & Champoux s.e.n.c., indicating that he had been invoiced an amount totalling $82,544.35. On March 23, 2018, the Respondents submitted their representations concerning costs. They attached three items: the order from Prothonotary Morneau refusing the application for the Applicant’s interim costs, news articles, and the notice of appeal of the aforementioned decision dated December 21, 2017. Finally, on April 4, 2018, the Applicant submitted his response concerning costs.\n[4] The parties did not submit a bill of costs and hence the Court does not know the estimated amount of costs that would be granted according to Column III of Tariff B, if Rule 407 of the Federal Courts Rules, SOR/98-106 [the Rules] were applied.\nII. Position of the parties\n[5] Mr. Bacon St-Onge is requesting payment of costs on the attorney-client basis, thus covering all of the professional and legal fees incurred. In support of this request, he basically presented five (5) arguments, namely (1) his application for judicial review was upheld; (2) the application was brought in the public’s interest and it went beyond the scope of his individual interests; (3) unlike the Respondents, he is not in a position to have the First Nation reimburse the legal fees; (4) the case required a considerable amount of work because the facts and applicable law were complex and because the cases consisted of more than 2,000 pages; and (5) the Respondents unjustifiably refused to withdraw from a proceeding that was condemned in advance.\n[6] Mr. Bacon St-Onge also asked the Court (1) to reserve his right to again apply to a court of competent jurisdiction to claim any order and any additional sum required with respect to costs for the Respondents’ application for review; and (2) to exempt him from all the fees and expenses to be paid to the Respondents as part of this claim, the principal claim and any other ancillary or incidental claim in this case and in the appeal case.\n[7] To begin with, the Court confirms that it will not decide on these last two claims related either to possible future cases or to the appeal proceedings. Thus, this decision will be limited to the application for costs related to the litigation settled by the judgment delivered last December 21.\n[8] The Respondents reply that the expenses cannot be granted to the Applicant basically because (1) Prothonotary Morneau had refused the Applicant’s request for interim costs and there is thus res judicata on the question of expenses; and (2) the appeal dated December 21, 2017, suspends the awarding of costs and said costs will only be payable by the Applicant if their appeal is dismissed.\n[9] The Respondents add that, should costs be granted, (1) they must be calculated according to Column III of Tariff B of the Rules; (2) the questions raised in this case are not of concern to Band members, do not fall outside the individual interests of the Applicant, who showed interest in standing for election, thus showing that he had an individual interest in voiding the elections; (3) the Applicant unreasonably delayed bringing his complaint and the voters and candidates were greatly inconvenienced by the election’s invalidity; (4) the invoices that the Applicant submitted in support of his application for costs do not provide the dates and hours worked in the case and have no probative value, being domestic writings; and (5) the questions to be decided are not particularly complicated.\n[10] The Applicant replies that Prothonotary Morneau’s order decided on the application for interim costs, proceedings separate from the awarding of costs. The criteria that underlie the awarding of costs are different and, therefore, there is no res judicata in this case. Finally, the Applicant points out that he had no choice other than to turn to the courts because the Respondents refused to consider the Band members’ remarks concerning the illegality of the process for amending the 1994 Code. He thus acted for the good of all Band members. In response to the arguments concerning the format of the invoices submitted, he maintains that they are unsigned writings used in the course of business activities and that they are thus proof of their content.\n[11] Finally, the Applicant maintains that costs can be granted even if the decision is under appeal (Martselos v. Salt River Nation #195, 2008 FCA 221 at paragraphs 51 to 55).\nIII. Discussion\n[12] We should first deal with two of the arguments raised by the Respondents: the one related to the thing adjudicated and the one related to the effect of the appeal and the stay motion that were lodged.\n[13] Thus, the Court agrees with the Applicant’s position and concludes that Prothonotary Morneau’s decision on the interim costs is not res judicata on the awarding of costs at the end of the litigation. At least one of the three criteria established in Angle v. M.N.R., [1975] 2 SCR 248, the one requiring that the same question has been decided, is not satisfied here. The criteria related to a decision on the application for interim costs are different from those considered within the framework of the awarding of costs, and thus it cannot have res judicata.\n[14] As for the effect of the stay motion and the appeal that the Respondents presented to FCA, the Court notes that the Respondents did not submit any case law to support their argument. First, FCA dismissed the stay motion, and thus it is not necessary to focus on its implications with respect to the awarding of costs. Next, our Court has already agreed that appealing a Federal Court decision does not prevent the taxation of costs in the first instance (Halford v. Seed Hawk Inc., 2004 FC 1259 at paragraph 36). Thus, the Court has not been convinced that the appeal of the decision dated December 21, 2017, suspends the awarding of costs.\n[15] The Court will therefore decide on the awarding of costs and, in this regard, the Court is convinced that here, the costs must be granted in favour of the Applicant because his application for judicial review was upheld (Ticketnet Corp v. The Queen, [1999] FCA No. 1102, 99 DTC 5429).\n[16] The awarding of costs between parties is set out in sections 400 to 414 of Part II of Rules. To award costs, courts try to establish a fair balance between three principal objectives, namely “providing compensation, promoting settlement and deterring abusive behaviour” (Air Canada v. Thibodeau, 2007 FCA 115 at paragraph 24). Thus, according to Rule 407, unless the Court orders otherwise, the costs between parties are taxed in compliance with Column III of Tariff Table B.\n[17] As well, subsection 400(1) of the Rules states that the Court “shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.” The Court’s vast discretionary power over the awarding of costs has only two exceptions, related to representative actions and immigration cases, which are not at issue in this case.\n[18] Otherwise, the Court enjoys vast discretionary power (Salt River Nation #195 v. Martselos, 2008 FCA 221 at paragraphs 52 and 53). The factors that the Court may take into account are stated in subsection 400(3) of the Rules, the text of which is annexed. They include some of the factors raised by the Applicant, such as the importance and complexity of the issues (400(3)(c)), the amount of work (400(3)(g)) and whether the public interest in having the proceeding litigated justifies a particular award of costs (400(3)(h)).\n[19] The Court has the power to award a gross sum or to issue a more general order (Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc. (CA), 2002 FCA 417 at paragraphs 8 to 10).\n[20] The Court must therefore decide whether the costs will be assessed through taxation or by the awarding of a gross sum and must also decide whether there is cause to award a specific, higher amount either on the attorney-client basis or on the basis of the public interest.\n[21] To begin with, the Court rules out the payment of costs on the attorney-client basis because nothing in the case indicates that the Respondents demonstrated “reprehensible, scandalous or outrageous conduct” (Young v. Young, [1993] 4 SCR 3 at p. 134; Quebec (Attorney General) v. Lacombe, 2010 SCC 38 at paragraph 67).\n[22] As for a specific amount on the basis of public interest, the Supreme Court established, in the Carter decision (Carter v. Canada (Attorney General), 2015 SCC 5 at paragraph 140), a two-component criterion for awarding special costs to a successful party representing the public interest:\n. . . First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. In those rare cases, it will be contrary to the interests of justice to ask the individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim.\n[23] In this case, the Court notes that determining the electoral code’s validity is as much an interest for the Band as it is for the Applicant because the latter was a candidate in the elections whose cancellation he requested. Thus the Applicant cannot maintain that he had no individual interest in the litigation and here, at least one of the Supreme Court’s aforementioned criteria has not been satisfied.\n[24] In addition, it seems fair to argue that the Applicant is not in a position to get the Band to reimburse him for his legal fees. The Respondents have not submitted evidence showing that they paid their legal fees (Bellegarde v. Poitras, 2009 FC 1212 at paragraph 8) and it seems plausible to find that they are not paying them themselves, since they are members of the Band council.\n[25] Finally, the Court can find only that the workload and the complexity of the case or that the behaviour of the Respondents, having continued the proceedings, in themselves justify the awarding of special costs.\n[26] Hence, because the electoral code’s validity is effectively also a question of interest for the Band and because the Applicant is solely responsible for the litigation costs, the Court is convinced that the situation is an argument for awarding costs higher than those in Column III of Tariff B. In the absence of the parties’ bill of costs, the Court finds it difficult to set a “higher” amount by gross sum. Therefore, the Court will instead grant the Applicant costs through taxation, according to the upper band of Column V of Tariff B.\nJUDGMENT in file T-2135-16\nTHIS COURT’S JUDGMENT is that:\nThe Respondents are to pay costs to the Applicant according to the upper band of Column V of Tariff B;\n“Martine St-Louis”\nJudge\nRule 400(3)\nFactors in awarding costs\n(3) In exercising its discretion under subsection (1), the Court may consider\n(a) the result of the proceeding;\n(b) the amounts claimed and the amounts recovered;\n(c) the importance and complexity of the issues;\n(d) the apportionment of liability;\n(e) any written offer to settle;\n(f) any offer to contribute made under rule 421;\n(g) the amount of work;\n(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;\n(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;\n(j) the failure by a party to admit anything that should have been admitted or to serve a request to admit;\n(k) whether any step in the proceeding was\n(i) improper, vexatious or unnecessary, or\n(ii) taken through negligence, mistake or excessive caution;\n(l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily;\n(m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily;\n(n) whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299;\n(n.1) whether the expense required to have an expert witness give evidence was justified given\n(i) the nature of the litigation, its public significance and any need to clarify the law,\n(ii) the number, complexity or technical nature of the issues in dispute, or\n(iii) the amount in dispute in the proceeding; and\n(o) any other matter that it considers relevant.\nRègle 400(3)\nFacteurs à prendre en compte\n(3) Dans l’exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l’un ou l’autre des facteurs suivants :\na) le résultat de l’instance;\nb) les sommes réclamées et les sommes recouvrées;\nc) l’importance et la complexité des questions en litige;\nd) le partage de la responsabilité;\ne) toute offre écrite de règlement;\nf) toute offre de contribution faite en vertu de la règle 421;\ng) la charge de travail;\nh) le fait que l’intérêt public dans la résolution judiciaire de l’instance justifie une adjudication particulière des dépens;\ni) la conduite d’une partie qui a eu pour effet d’abréger ou de prolonger inutilement la durée de l’instance;\nj) le défaut de la part d’une partie de signifier une demande visée à la règle 255 ou de reconnaître ce qui aurait dû être admis;\nk) la question de savoir si une mesure prise au cours de l’instance, selon le cas :\n(i) était inappropriée, vexatoire ou inutile,\n(ii) a été entreprise de manière négligente, par erreur ou avec trop de circonspection;\nl) la question de savoir si plus d’un mémoire de dépens devrait être accordé lorsque deux ou plusieurs parties sont représentées par différents avocats ou lorsque, étant représentées par le même avocat, elles ont scindé inutilement leur défense;\nm) la question de savoir si deux ou plusieurs parties représentées par le même avocat ont engagé inutilement des instances distinctes;\nn) la question de savoir si la partie qui a eu gain de cause dans une action a exagéré le montant de sa réclamation, notamment celle indiquée dans la demande reconventionnelle ou la mise en cause, pour éviter l’application des règles 292 à 299;\nn.1) la question de savoir si les dépenses engagées pour la déposition d’un témoin expert étaient justifiées compte tenu de l’un ou l’autre des facteurs suivants :\n(i) la nature du litige, son importance pour le public et la nécessité de clarifier le droit,\n(ii) le nombre, la complexité ou la nature technique des questions en litige,\n(iii) la somme en litige;\no) toute autre question qu’elle juge pertinente.\nFEDERAL COURT\nSOLICITORS OF RECORD\nDOCKET:\nT-2135-16\nSTYLE OF CAUSE:\nJÉRÔME BACON ST-ONGE v. THE CONSEIL DES INNUS DE PESSAMIT, RENÉ SIMON, ÉRIC CANAPÉ, GÉRALD HERVIEUX, DIANE RIVERIN, JEAN-NOEL RIVERIN, RAYMON ROUSSELOT, MARIELLE VACHON\nREASONS FOR ORDER AND ORDER:\nST-LOUIS J.\nDATED:\nJune 22, 2018\nWRITTEN SUBMISSIONS BY:\nFrançois Boulianne\nFOR THE APPLICANT\nKenneth Gauthier\nFor the respondents\nSOLICITORS OF RECORD:\nNeashish & Champoux, s.e.n.c.\nWendake, Quebec\nFOR THE APPLICANT\nKenneth Gauthier\nCounsel\nBaie-Comeau, Quebec\nFor the respondents\n',
"cluster: CONCLUSION: The Court concluded that the Respondents were to pay costs to the Applicant according to the upper band of Column V of Tariff B. The Court's decision was based on its discretionary power to award costs, taking into account the factors set out in Rule 400(3) of the Federal Courts Rules. The Court's decision was intended to provide a fair balance between the parties and to reflect the complexity and importance of the issues in the case.",
"cluster: ANALYSIS: The Court analyzed the factors to be considered in awarding costs, as set out in Rule 400(3) of the Federal Courts Rules. The Court considered the importance and complexity of the issues, the amount of work, and the public interest in having the proceeding litigated. The Court also considered the conduct of the parties, including the Respondents' refusal to consider the Band members' remarks concerning the illegality of the process for amending the 1994 Code. The Court found that the Applicant was solely responsible for the litigation costs and that the situation justified awarding costs higher than those in Column III of Tariff B. However, the Court did not find that the case met the two-component criterion for awarding special costs to a successful party representing the public interest, as established by the Supreme Court in the Carter decision.",
]
embeddings = model.encode(sentences)
print(embeddings.shape)
# [3, 768]
# Get the similarity scores for the embeddings
similarities = model.similarity(embeddings, embeddings)
print(similarities.shape)
# [3, 3]
```
## Training Details
### Training Dataset
#### Unnamed Dataset
* Size: 13,500 training samples
* Columns: anchor, positive, and negative
* Approximate statistics based on the first 1000 samples:
| | anchor | positive | negative |
|:--------|:----------------------------------------------------------------------------------------|:--------------------------------------------------------------------------------------|:--------------------------------------------------------------------------------------|
| type | string | string | string |
| details | - min: 410 tokens
- mean: 2901.01 tokens
- max: 6550 tokens
| - min: 18 tokens
- mean: 209.23 tokens
- max: 1169 tokens
| - min: 27 tokens
- mean: 219.56 tokens
- max: 1261 tokens
|
* Samples:
| anchor | positive | negative |
|:------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------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| cluster: ANALYSIS: Jalota v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2013-11-19
Neutral citation
2013 FC 1176
File numbers
IMM-3349-13
Decision Content
Date: 20131119
Docket:
IMM-3349-13
Citation: 2013 FC 1176
Ottawa, Ontario, November 19, 2013
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MANAV JALOTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] This is the judicial review of a decision refusing Mr. Jalota’s application to restore his temporary resident status as a student.
The restoration application was denied because the Officer was not satisfied that (a) the Applicant was a genuine temporary resident and student; (b) the Applicant had sufficient funds; (c) he would leave Canada at the end of the authorized study; and (d) the co-op component of his studies met some specified criteria.
II. BACKGROUND
[2] The Applicant is from India and obtained a study permit valid until December 31, 2012.
[3] Having arrived in Canada in January 2011, the Applicant started at one college, transferred to another and finally to a third. All of these transfers are permitted under his permit.
[4] In September 2012 the Applicant applied for an extension of his permit which was refused. The reason for refusal was the officer’s belief that he was not a genuine student, which was stated in the following strong terms:
You have submitted documentation which lacks credibility as part of your application. This has diminished the overall credibility of your submission.
[5] This is a critical aspect of this whole matter because the refusal does not say in what manner the documents lack credibility; however, the credibility finding is part of the overall restoration file (it was contained in the Tribunal Record as part of the material before the Officer on the restoration matter).
[6] In January 2013 the Applicant made an application to restore status. In so doing, the Applicant followed the Document Checklist – Student issued by Citizenship and Immigration Canada [CIC]. That document is divided into three parts: the first part applies to “All Applicants”, the second applies to a “Study Permit” and the third applies to “Restoration of Temporary Status”.
[7] Under the Restoration part of the Checklist, CIC asks for:
1. photocopies of passport pages (also requested under Study Permit);
2. copy of current immigration document; and
3. documents related to loss of status.
[8] In the covering letter for the application to restore, the Applicant enclosed transcripts and attendance records. He went on to note that he had funds to carry him through the school semester and offered to supply evidence if required.
[9] The application for restoration was denied for the reasons earlier described.
[10] The Global Case Management System [GCMS] identified the Officer’s concerns:
• failure to submit proof of funds;
• failure to submit transcripts from previous studies;
• absence of studies from August 2011 to January 2012; and
• failure in a college letter of acceptance to give certain details of co-op program’s importance.
There is nothing in those Notes concerning the failure to leave Canada at the end of the study permit.
[11] The Respondent concedes that there was a breach of procedural fairness when the Officer failed to request prior transcripts but based the decision on the failure to produce those transcripts.
[12] The Respondent contends that despite the breach of procedural fairness, the decision is reasonable based on the absence of financial information. The Respondent seeks to carve out financial information as a discrete ground for the decision which can breathe life into an otherwise infirm decision.
III. ANALYSIS
[13] It is well accepted that a breach of natural justice in decision making is an error of law and jurisdiction which results in the whole decision being quashed. There are very limited and exceptional circumstances where a breach will not have that result – such as where the breach could not have affected the result (Lahocsinszky v Canada (Minister of Citizenship and Immigration), 2004 FC 275, 129 ACWS (3d) 769).
[14] In the present instance the breach is the grounds for one of the findings against the Applicant. It cannot be said that the breach did not affect the result. This is not a case where it is futile to send the matter back for redetermination because the result is inevitable (Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202).
[15] Therefore, on that ground alone, this judicial review will be granted.
[16] However, it is important to address the Respondent’s claim that the absence of financial information was fatal to the restoration application and therefore the decision should be sustained.
[17] The Respondent’s own checklist does not ask for any financial information per se as part of a restoration application, although it is listed as a requirement for study permit applications. For restoration applications, the key requirement is production of the documents related to loss of status. If the Respondent wished to have financial or other documents, it should have asked for them either in the Checklist or by additional request. Any confusion in the Checklist lies at the feet of the Respondent and it is a further breach of procedural fairness to have a misleading document supplied to the public (Lim v Canada (Minister of Citizenship and Immigration), 2005 FC 657, 272 FTR 293).
[18] This breach is particularly so where the Applicant confirmed his financial situation and informed the Respondent that he was prepared to provide evidence if asked. It is no answer to say that section 182 of the Immigration and Refugee Regulations, SOR/2002-227, requires, on a restoration application, that an applicant meet the initial requirements for their stay. The Applicant met the initial requirements at the time of his first application, the evidence was in the file and there was nothing to suggest that anything had changed.
[19] The core problem with this matter is the requirement to produce documents related to the loss of status – as specified in the Checklist. It requires one to determine the cause of the loss of status.
[20] It is not clear from the decision denying the extension of the permit – the cause of the loss of status – what the real problem was with the Applicant’s documents. It is unfair to leave a party with questions as to what was incredulous about his documents. Unfortunately, in this case, the Applicant never asked.
[21] However, since the stated reason for refusal was concern about the Applicant being a genuine student, not that he lacked sufficient funds, it is reasonable to conclude that the loss of status related to academic matters not financial. It was therefore reasonable for the Applicant to address those issues in his restoration application – which he did.
[22] It is incumbent on the Respondent to state the reasons for loss of status in sufficient terms that an applicant can address those reasons in any further relief he may claim.
[23] The Respondent acknowledges that on this issue, it breached procedural fairness in respect to not requesting earlier transcripts. The problem is deeper than that. The core unfairness lay in the reasons for denying the extension which then led to the problems in addressing the restoration application.
[24] The Respondent’s reliance on financial issues is a new-found basis; not the basis for the original loss of status.
[25] It is a breach of procedural fairness to rely on a grounds not cited in the original decision without giving the Applicant notice that this ground of financial sustainability is now at issue – just as it was a breach of procedural fairness to not give notice that earlier transcripts were required (a point the Respondent properly concedes).
[26] These breaches of procedural fairness are further grounds for quashing the decision denying restoration.
[27] Lastly, the Respondent has put forward no basis for concluding that the Applicant would not leave Canada. It is not sufficient to just run through the various grounds for denial of the application, as if checking off a list, without giving reasons for the conclusion.
[28] As an overall conclusion, the allegation of lack of credibility of the Applicant because of problems with his documents seems to have permeated this file. If the Respondent had problems with the documents, it was obliged to state what those problems were. Conclusionary statements are not “reasons”.
IV. CONCLUSION
[29] This judicial review will be granted, the decision will be quashed, and the matter referred back to a different officer for a fresh determination.
[30] There are no questions for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is granted, the decision is quashed and the matter is to be referred back to a different officer for a fresh determination.
"Michael L. Phelan"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-3349-13
STYLE OF CAUSE:
MANAV JALOTA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Vancouver, British Columbia
DATE OF HEARING:
November 14, 2013
REASONS FOR JUDGMENT AND JUDGMENT:
PHELAN J.
DATED:
november 19, 2013
APPEARANCES:
Laura Best
For The Applicant
Adam Taylor
For The Respondent
SOLICITORS OF RECORD:
Embarkation Law Group
Barristers and Solicitors
Vancouver, British Columbia
For The Applicant
William F. Pentney
Deputy Attorney General of Canada
Vancouver, British Columbia
For The Respondent
| cluster: ANALYSIS: The court analyzed the case by considering the principles of natural justice and procedural fairness. The court held that a breach of natural justice in decision-making is an error of law and jurisdiction that results in the whole decision being quashed, unless there are exceptional circumstances where the breach could not have affected the result. In this case, the breach of procedural fairness was not limited to the failure to request prior transcripts but was also evident in the unclear decision-making process and the officer's reliance on new-found grounds.The court also examined the Document Checklist – Student issued by Citizenship and Immigration Canada and found that it did not ask for financial information per se as part of a restoration application. The key requirement for restoration applications was the production of documents related to the loss of status. The court concluded that the officer's failure to request financial information was a breach of procedural fairness, particularly since the person concerned had confirmed his financial situation and offered to provide evidence if required. | cluster: SUMMARY: **(1) Facts**
The person concerned, a student from India, initially obtained a study permit valid until December 31, 2012. He started his studies at one college, transferred to another, and then to a third, all of which were permitted under his study permit. In September 2012, the person concerned applied for an extension of his permit, but it was refused because the officer believed he was not a genuine student. This decision was based on the officer's finding that the documentation submitted lacked credibility. However, the officer did not specify what was lacking in credibility.
The person concerned then made an application to restore his temporary resident status as a student in January 2013. He followed the Document Checklist – Student issued by Citizenship and Immigration Canada, which included providing photocopies of passport pages, a copy of his current immigration document, and documents related to the loss of status. The application was denied for reasons similar to the initial extension refusal, including the lack of proof of funds, failure to submit transcripts from previous studies, absence of studies from August 2011 to January 2012, and failure in a college letter of acceptance to give certain details of the co-op program's importance.
**(2) Issue**
The issue before the court was whether the decision to deny the person concerned's application to restore his temporary resident status as a student was reasonable and whether the officer's failure to request prior transcripts and the lack of clarity in the decision-making process breached procedural fairness.
**(3) Rule**
The court ruled that the decision to deny the person concerned's application to restore his temporary resident status as a student was unreasonable due to the breach of procedural fairness. The officer failed to request prior transcripts, which was a critical piece of information, and the decision-making process was unclear. The court also found that the officer's reliance on financial issues as a basis for denying the restoration application was a new-found ground that was not cited in the original decision, which was a further breach of procedural fairness.
**(4) Analysis**
The court analyzed the case by considering the principles of natural justice and procedural fairness. The court held that a breach of natural justice in decision-making is an error of law and jurisdiction that results in the whole decision being quashed, unless there are exceptional circumstances where the breach could not have affected the result. In this case, the breach of procedural fairness was not limited to the failure to request prior transcripts but was also evident in the unclear decision-making process and the officer's reliance on new-found grounds.
The court also examined the Document Checklist – Student issued by Citizenship and Immigration Canada and found that it did not ask for financial information per se as part of a restoration application. The key requirement for restoration applications was the production of documents related to the loss of status. The court concluded that the officer's failure to request financial information was a breach of procedural fairness, particularly since the person concerned had confirmed his financial situation and offered to provide evidence if required.
**(5) Conclusion**
The court concluded that the decision to deny the person concerned's application to restore his temporary resident status as a student was unreasonable due to the breach of procedural fairness. The court granted the judicial review, quashed the decision, and referred the matter back to a different officer for a fresh determination. |
| cluster: ISSUES: Melo Castrillon v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2018-05-01
Neutral citation
2018 FC 470
File numbers
IMM-1617-17
Decision Content
Date: 20180501
Docket: IMM-1617-17
Citation: 2018 FC 470
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 1, 2018
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
RUBY AMPARO MELO CASTRILLON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] Ruby Amparo Melo Castrillon seeks judicial review (under section 72 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) [IRPA]) of the decision of the Refugee Protection Division (RPD) finding that Ms. Melo Castrillon is not a Convention refugee or a person in need of protection.
I. Preliminary Issue
[2] The RPD’s decision was made under more nuanced circumstances. Its decision on March 13, 2017, related to Ms. Melo Castrillon and four members of her immediate family. Ms. Melo Castrillon is excluded under section 98 of the IRPA. With regard to the other four claimants, the RPD found that there was no serious possibility of them being considered Convention refugees or persons in need of protection given the lack of credibility of their claim. The RPD also seems to have found that this is the case for Ms. Melo Castrillon. Ms. Melo Castrillon is the sole applicant in this judicial review. She seeks judicial review of only the aspect of the decision regarding her exclusion under section 98.
[3] It is paradoxical for the applicant to seek judicial review of only one part of the RPD’s decision. As counsel for the respondent observed, it seems that the RPD not only declared Ms. Melo Castrillon to be excluded, but also found that she was not a Convention refugee or a person in need of protection. The applicant is contesting the first finding that she is excluded, but not the finding that none of the claimants could qualify under sections 96 and 97 of the IRPA. If that is true, even if the applicant were successful in her case before the Court, that would not set aside the finding that she is not a Convention refugee or a person in need of protection because she is not contesting that aspect of the decision. This makes the application for judicial review moot since, either way, the applicant cannot succeed in her effort to benefit from sections 96 and 97 of the IRPA (Borowski v. Canada (Attorney General), [1989] 1 SCR 342 [Borowski] at page 353).
[4] Nevertheless, the Court heard the parties because leave was given by this Court, and it decided to review the application for judicial review on merit even though it is moot (Borowski, at pages 358-363). The Court is convinced that the applicant could reasonably be excluded pursuant to section 98 of the IRPA.
II. Issue
[5] Ms. Melo Castrillon, who is the mother of the principal claimant before the RPD, is subject to a particular refusal because, according to the RPD, she is excluded under Article 1E of the Convention relating to the Status of Refugees. Article 1E reads as follows:
1E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
1E. Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays.
Section 98 of the IRPA incorporates the consequences of being subject to Article 1E into Canadian law. Section 98 reads as follows:
Exclusion — Refugee Convention
Exclusion par application de la Convention sur les réfugiés
98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
98 La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
[6] The only decision the RPD made on the basis of section 98 was the one regarding Ms. Melo Castrillon’s exclusion.
III. Facts
[7] The applicant obtained permanent resident status in Italy on March 12, 2013. She had been living in Italy since August 2007. She decided to leave Italy on May 29, 2015, and return to her home country of Colombia, where her family was living. However, she did not remain there for long. After travelling to the United States in January 2016, she and her immediate family arrived at the Canadian border on January 22, 2016. They then filed a refugee claim. They were arriving from Colombia.
[8] Ms. Melo Castrillon reported that she had left Italy on May 29, 2015, to return to Colombia. There were two hearings before the RPD, on May 4, 2016, and on June 23, 2016. This is of some importance, since a claim was made that permanent resident status may be lost in Italy if a person does not reside there for a period of 12 consecutive months. Indeed, the applicant claims that her absence from Italy resulted in her losing her permanent resident status and, therefore, that section 98 of the IRPA did not apply after May 29, 2016. Since the RPD hearing did not end until June 23, 2016, this would indicate that the RPD erred in excluding the applicant under section 98 because she had been absent for more than 12 consecutive months.
[9] Therefore, the question is as to whether Ms. Melo Castrillon had lost her permanent resident status in Italy, meaning that Article 1E of the Convention could no longer be validly applied to her and that she could therefore claim refugee or person in need of protection status in Canada.
IV. The RPD’s decision
[10] The Minister of Public Safety and Emergency Preparedness intervened before the RPD under subsection 170(e) of the IRPA. It has been established that the applicant was a resident of Italy between August 2007 and May 29, 2015. The Minister made allegations about Ms. Melo Castrillon’s legal situation. The Minister alleges that she claimed to have permanent resident status in Italy during her point-of-entry interview on January 23, 2016. In addition, the Minister said that he had received confirmation from the Italian authorities that Ms. Melo Castrillon holds a permanent residence permit issued on March 12, 2013. The Minister stated that there are conditions that could result in the loss of permanent resident status in Italy. However, the applicant did not file any such evidence. That is why the Minister is arguing that there is a prima facie case that the applicant was still a permanent resident in Italy on the day of the RPD hearing. According to the Minister, this would mean that section 98 of the IRPA provides that Ms. Melo Castrillon is simply excluded by the application of Article 1E of the Convention and cannot be considered a Convention refugee or a person in need of protection in Canada.
[11] The RPD placed little importance on the fact that the applicant apparently claimed on two different forms that she had begun living in Italy in November 2004 and had resided in Italy since August 2007. Furthermore, it is established that she stated during her interview on January 23, 2016, that she had permanent resident status in Italy.
[12] Therefore, the following issues were before the RPD:
a) Ms. Melo Castrillon was a permanent resident of Italy until her departure on May 29, 2015;
b) The period of 12 consecutive months is being considered for the purposes of Canadian law from the date of departure until the hearing before the RPD;
c) Therefore, the one-year period had not elapsed on the day the applicant made a refugee claim in Canada or on May 4, 2016, the day the hearing began, but it had elapsed on June 23, 2016, the day of the second hearing;
d) A person may lose permanent resident status in Italy if they are outside the European Union for a period of 12 consecutive months;
e) The RPD was satisfied that permanent resident status in Italy entitles the holder to return there. Furthermore, the RPD found that a permanent resident in Italy has the same rights and obligations as Italian citizens within the meaning of section 98. The RPD based this finding in particular on the index of the National Documentation Package on Italy (May 31, 2016), a national package made available to the public by the Immigration and Refugee Board of Canada. In particular, the RPD seems to have based its conclusion on the following paragraph:
7. Rights of Individuals Holding an EC Long-Term Residence Permit The State Police website indicates that individuals holding an EC Long-Term Residence Permit are entitled to enter Italy without a visa, to work, to have access to social benefits and services provided by the Italian government, and to “participate in local public life” (Italy 29 Mar. 2010). The Ministry of Interior’s Staying in Italy Legally indicates that foreign nationals with a valid residence permit are granted the same education rights as Italian citizens (ibid. n.d., 21). The same source indicates that foreign nationals with a “regular residence permit” are required to register with the National Health Service (Servizio Sanitario Nazionale, SSN), and are entitled by law to receive health care and have “equal treatment as Italian citizens regarding compulsory contributions, health care given in Italy by the SSN and its time limit” (ibid., 23).
f) The burden was on the applicant to demonstrate to the RPD’s satisfaction that she had lost permanent resident status. The RPD stated the following in this regard:
[47] [translation] That being said, according to recent evidence from Italian authorities regarding the claimant, there is simply the possibility of losing status; they did not indicate that she was going to lose her status in Italy, nor that she had lost her status at the time of the hearing. Moreover, in the documents the applicant submitted regarding her communications with Italian authorities, there is no confirmation that she had lost her permanent resident status.
V. Standard of review and analysis
[13] It has been well established that the role of a reviewing judge is solely to ensure that the decision made is legal. Therefore, for certain issues, the reviewing judge must decide whether a given issue is reviewable on the standard of correctness. As the law stands, these issues are rare. In the vast majority of cases, the applicable standard of review is reasonableness (see the recent Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, at para. 26 et seq., for an illustration of the changes in the law on the appropriate standard). That is the case here, where Article 1E of the Convention must be interpreted. In Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274 [Majebi], the Federal Court of Appeal stated the following:
[5] First, we disagree that the Federal Court incorrectly reviewed the decision of the Appeal Division on the reasonableness standard of review. As the Federal Court correctly noted, this Court has expressed different opinions on the standard of review that applies to decisions interpreting international instruments. However, authorities that pre-date the articulation of the presumption of reasonableness review set out in cases such as Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R 654 must be approached with caution. In the present case we agree with the Federal Court that nothing in the legislative context reveals Parliament’s intent “not to protect the tribunal’s jurisdiction” (Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 S.C.R. 3, at paragraph 46). Nor does the interpretation of the Convention fall into one of the categories of questions to which the correctness standard continues to apply as explained in Alberta Teachers’ at paragraph 30. This conclusion is consistent with the more recent decision of this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 (CanLII), [2014] 4 F.C.R. 326, at paragraphs 58-72.
[6] It follows that the Appeal Division’s interpretation of the Convention was correctly reviewed on the reasonableness standard of review.
[14] In applying that standard, the Court is seeking what makes a decision reasonable. Does the decision fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law? Was there justification, transparency and intelligibility within the decision-making process? (Dunsmuir v. New Brunswick, 2008 SCC 9; 2008 1 SCR 190 at para. 47).
[15] No one disputes that the review of the application of Article 1E must be done at a certain point. The parties and the Court agree that the review of the application of Article 1E of the Convention is performed on the last day of the hearing before the RPD. In Majebi, the Court wrote:
[7] The Appeal Division applied the decision of this Court in Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118 (CanLII), [2011] 4 F.C.R. 3 to conclude that the appellants’ status should be considered as of the last day of the hearing before the Refugee Protection Division. We agree with the Federal Court that this was a reasonable conclusion for the Appeal Division to reach.
[16] As James C. Hathaway and Michelle Foster explain in The Law of Refugee Status, 2nd ed. (Cambridge University Press, 2014), Article 1E of the Convention relating to the Status of Refugees provides that protection is no longer available to a certain category of persons (the other being in Article 1D). These persons benefit from the protection of another state, meaning that the protection of a substitute state, in this case, Canada, is not required. In short, if Ms. Melo Castrillon was able to benefit from the protection of another state at the time of her refugee claim hearing, the claim had to be made to that state.
[17] Of course, there are conditions that result in the loss of Convention benefits. Essentially, these are cases of “de facto nationals,” those who have the rights and obligations attached to the possession of the nationality of that country.
[18] In this case, the issue is to determine whether the applicant was still a “de facto national” of Italy because of her permanent resident status, which entitled her to enter Italy without a visa, among other things. The applicant limited her dispute to her claim that she had lost her permanent resident status 12 months after she left Italy. She is arguing that the loss of status would be automatic.
VI. Analysis
[19] The applicant says that she did research to confirm whether or not she had lost her status. Neither on the day of the hearing before the RPD, nor since, including on the day of the Court hearing, was she able to determine whether she is a permanent resident of Italy. This, in itself, indicates that the status is not automatically lost. At most, the status can be revoked from those who are absent from the country for 12 months.
[20] Therefore, the sole issue before the Court is to determine whether the RPD’s decision that the applicant had permanent resident status on June 23, 2016, is reasonable. It is not disputed that a person who has been absent from Italy for more than 12 consecutive months could lose their permanent resident status. The question is to determine whether the loss of status is automatic.
[21] To succeed in her claim, the applicant was required to convince the RPD that as of May 30, 2016, she had lost her permanent resident status in Italy. That loss would have to be automatic, or practically so.
[22] As previously noted, the applicant attempted to determine her status in Italy. What is relevant for our purposes is her status on the day of the hearing, June 23, 2016. Despite her attempts, she was unable to confirm her status. If the status was automatically lost on May 30, 2016, i.e. 12 months after she left Italy, it would have been simple for the Italian authorities to confirm the loss of status. That was not the case. This seems to confirm the documentary evidence indicating that refugee status may be revoked if the permanent resident is not on European Community (EC) territory for 12 consecutive months.
[23] The reality is that the applicant has not even established that she was absent from Italy and the EC for 12 consecutive months. All we know is that she apparently left Italy on May 29, 2015. Regardless, what is relevant in this case is that the RPD concluded on the documentary evidence only that the possibility of status revocation exists; it is not lost automatically. It appears that there needs to be an act of revocation. As the RPD observed, if revocation was automatic, there should have been a simple and direct response from the Italian authorities, which suggests that the interpretation of the documentary evidence is correct. Therefore, it must be reasonable.
[24] I consulted the documentary evidence on file and do not doubt the reasonableness of the RPD finding that revocation of permanent residence is possible, but not automatic.
[25] Referencing Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118 [Zeng], the RPD concluded that Ms. Melo Castrillon had essentially a similar status to that of Italian citizens. Therefore, she is excluded if she was a permanent resident on the day of the RPD hearing, in other words, if she had not lost her permanent resident status on the day of the hearing. Paragraphs 28 and 29 of Zeng speak for themselves:
[28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
[29] It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances.
[26] The RPD found that the applicant had permanent resident status on the day of the hearing and that this status is essentially similar to that of Italian citizens. Therefore, it was unnecessary to proceed with an analysis based on the decision tree proposed by the Federal Court of Appeal.
[27] If the applicant cannot establish whether she was automatically excluded from permanent resident status, it was perfectly reasonable for the RPD to conclude that she had that status on the day of the hearing.
VII. Conclusion
[28] Two questions arise upon review of Article 1E of the Convention. Firstly, does a person’s status in the country where they resided entitle them to the same benefits that the country’s citizens receive? Secondly, does this person still have this status if that is the country where they are a “de facto national”? If so, that is the country where the person must seek refuge.
[29] The RPD hearing took place more than 12 months after the applicant left Italy. I cannot find anything unreasonable in considering that the permanent resident status may be revoked after 12 months, but is not automatically revoked. It being established that the applicant had that status when she left Italy, which is not disputed, the burden was on the applicant to establish to the RPD’s satisfaction that the status was automatically or otherwise revoked. This was not done. Consequently, the RPD’s decision was reasonable on its face as to the maintenance of the status on the hearing date. The rights conferred by this status in Italy are similar to the rights and obligations attached to the possession of the nationality of that country, as required by Article 1E. As a result, the application for judicial review must be dismissed, because the RPD’s decision is reasonable.
[30] The parties did not indicate that there is a question within the meaning of subsection 74(d) of the IRPA. There is no serious question of general importance to certify.
JUDGMENT in file IMM-1617-17
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed;
No questions of general importance are proposed or certified.
“Yvan Roy”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-1617-17
STYLE OF CAUSE:
RUBY AMPARO MELO CASTRILLON v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
April 16, 2018
JUDGMENT AND REASONS:
ROY J.
DATED:
May 1, 2018
APPEARANCES:
Nancy Munoz Ramirez
For the applicant
Thi My Dung Tran
For the respondent
SOLICITORS OF RECORD:
Nancy Cristina Munoz Ramirez
ROA Services Juridiques
Montréal, Quebec
For the applicant
Attorney General of Canada
Montréal, Quebec
For the respondent
| cluster: ISSUES: The person concerned sought judicial review of the RPD's decision, arguing that she had lost her permanent resident status in Italy after being absent for 12 consecutive months. The issue before the court was whether the RPD's decision that the person concerned had permanent resident status on June 23, 2016, was reasonable. | cluster: SUMMARY: **(1) Facts**
The person concerned, Ruby Amparo Melo Castrillon, is a Colombian national who obtained permanent resident status in Italy on March 12, 2013. She had been living in Italy since August 2007. However, she left Italy on May 29, 2015, and returned to Colombia. She then traveled to the United States and eventually arrived at the Canadian border on January 22, 2016, with her immediate family. They filed a refugee claim, and the Refugee Protection Division (RPD) conducted two hearings, on May 4, 2016, and June 23, 2016. The RPD found that the person concerned was excluded under section 98 of the Immigration and Refugee Protection Act (IRPA) because she was a permanent resident of Italy until her departure on May 29, 2015, and had not lost her permanent resident status.
**(2) Issue**
The person concerned sought judicial review of the RPD's decision, arguing that she had lost her permanent resident status in Italy after being absent for 12 consecutive months. The issue before the court was whether the RPD's decision that the person concerned had permanent resident status on June 23, 2016, was reasonable.
**(3) Rule**
The court applied the reasonableness standard of review, as established in the case of Majebi v. Canada (Citizenship and Immigration). The court considered the documentary evidence and the RPD's findings, which indicated that the possibility of status revocation exists, but it is not automatic. The court also considered the case of Canada (Citizenship and Immigration) v. Zeng, which established that a person's status in the country where they resided entitles them to the same benefits that the country's citizens receive.
**(4) Analysis**
The court analyzed the RPD's decision and found that it was reasonable. The court noted that the person concerned had not established that she was automatically excluded from permanent resident status and that the RPD's conclusion that she had that status on the day of the hearing was reasonable. The court also considered the documentary evidence, which indicated that refugee status may be revoked if the permanent resident is not on European Community (EC) territory for 12 consecutive months. However, the court found that the RPD's interpretation of the documentary evidence was correct, and that revocation of permanent residence is possible, but not automatic.
**(5) Conclusion**
The court concluded that the RPD's decision was reasonable and dismissed the person concerned's application for judicial review. The court found that the person concerned had not established that she had lost her permanent resident status in Italy and that the RPD's decision was consistent with the requirements of Article 1E of the Convention relating to the Status of Refugees. The court also noted that the person concerned had not established that there was a serious question of general importance to certify. |
| cluster: FACTS: Bell Canada v. Lackman
Court (s) Database
Federal Court Decisions
Date
2017-06-30
Neutral citation
2017 FC 634
File numbers
T-800-17
Decision Content
Date: 20170629
Docket: T-800-17
Citation: 2017 FC 634
Ottawa, Ontario, June 29, 2017
PRESENT: The Honourable Mr. Justice Bell
BETWEEN:
BELL CANADA
BELL EXPRESSVU LIMITED PARTNERSHIP BELL MEDIA INC.
VIDEOTRON S.E.N.C.
GROUPE TVA INC.
ROGERS COMMUNICATIONS CANADA INC.
ROGERS MEDIA INC.
Plaintiffs
and
ADAM LACKMAN dba TVADDONS.AG
Defendant
ORDER WITH REASONS
I. Introduction
[1] On June 9, 2017, a Justice of this Court issued an Anton Piller Order and an Interim Injunction following motions made ex parte and in camera by the Plaintiffs.
[2] Without a doubt, the consideration of ex parte orders – orders that are made without notice to or appearance by the defending party – constitute one of the most challenging issues facing judges in our adversarial system. When the ‘adversary’ is not present, the norms and very foundation of our justice system face serious challenges. For this reason, it is trite law that a party seeking an ex parte order must provide full and frank disclosure to the court. This full and frank disclosure extends not only to the factual underpinnings of the motion, but to the relevant jurisprudence and statutory provisions that might impact upon a judge tasked with rendering a decision in such circumstances. The relevant jurisprudence in this matter has been developed over the past 30 years and sets out the circumstances under which an Anton Piller order may be issued, and how such an order should be executed.
[3] Anton Piller orders are essentially civil search warrants that give a plaintiff access to the premises of the defendant, without notice, to search for and to seize property. While the plaintiff or the plaintiff’s representative cannot enter the premises without the permission of the occupant, that permission is normally obtained upon threat of contempt proceedings.
[4] The leading case regarding Anton Piller orders is Celanese Canada Inc. v. Murray Demolition Corporation, 2006 SCC 36, [2006] 2 S.C.R. 189 (Celanese). In his opening paragraph in Celanese, Justice Binnie, speaking for the Court stated:
An Anton Piller order bears an uncomfortable resemblance to a private search warrant. No notice is given to the party against whom it is issued. Indeed, defendants usually first learn of them when they are served and executed, without having had an opportunity to challenge them or the evidence on which they were granted. The defendant may have no idea a claim is even pending. The order is not placed in the hands of a public authority for execution, but authorizes a private party to insist on entrance to the premises of its opponent to conduct a surprise search, the purpose of which is to seize and preserve evidence to further its claim in a private dispute. The only justification for such an extraordinary remedy is that the plaintiff has a strong prima facie case and can demonstrate that on the facts, absent such an order, there is a real possibility relevant evidence will be destroyed or otherwise made to disappear. The protection of the party against whom an Anton Piller order is issued ought to be threefold: a carefully drawn order which identifies the material to be seized and sets out safeguards to deal, amongst other things, with privileged documents; a vigilant court-appointed supervising solicitor who is independent of the parties; and a sense of responsible self-restraint on the part of those executing the order.
[5] Hence, the only justification for what amounts to a party’s right to execute a search warrant in a private dispute (an Anton Piller order) is a demonstrated need to preserve relevant evidence where there is a real possibility of destruction or disappearance of that evidence.
[6] In Celanese at para 35, the Court sets out four essential conditions which must be established by the plaintiff before an Anton Piller order may issue. These conditions are reaffirmed in British Columbia (Attorney General) v. Malik, 2011 SCC 18 at para 29, [2011] 1 S.C.R. 657 (Malik), and state:
There must be a strong prima facie case;
The damage to the plaintiff of the defendant’s alleged misconduct, potential or actual, must be very serious;
There must be convincing evidence that the defendant has in its possession incriminating documents or things; and
There must be a real possibility that the defendant may destroy such material before the discovery process can do its work.
[7] The four conditions were deemed to have been met by the justice at the June 9, 2017 hearing, and an Anton Piller Order was issued. Both the Anton Piller Order and the Interim Injunction were made for a period of 14 days only.
[8] The Anton Piller Order was fully executed within the 14 days set out in the order. On June 21, 2017, the Interim Injunction was extended to June 30, 2017, on consent of the parties, in order to provide the Court the opportunity to more fully consider the Plaintiffs’ review motion, in which they seek:
A declaration that the Anton Piller Order was lawfully issued and that the Order and accompanying Interim Injunction were lawfully carried out;
An order authorizing the Plaintiffs to withdraw a deposit of $50,000 deposited on June 9, 2017 as security for damages;
An order that paragraphs C-17 to C-20 of the Order made on June 9, 2017 remain valid until final determination of this proceeding;
An interlocutory injunction pursuant to Rule 373 of the Federal Courts Rules, SOR/98-106 (the Rules), which would effectively result in the continuation of the interim injunction issued on June 9, 2017 until final determination of this proceeding.
An order for a mandatory injunction that would require the Defendant to continue to provide login credentials, passwords and other necessary access to material that was targeted by the Anton Piller Order. The effect of this order, if granted, would be to provide a continuous search warrant to the Plaintiffs until this matter is finally determined.
Costs to be awarded on a solicitor-client basis.
II. The Parties and the Relevant Facts
[9] The Plaintiffs are corporations, limited partnerships or general partnerships who are either broadcasters who operate television stations, or broadcasting distribution undertakings pursuant to the Broadcasting Act, S.C. 1991, c. 11 who receive broadcasts from several televisions stations. The broadcasters contend that they own the Canadian rights to communicate a variety of programs to the public by telecommunication via television and online broadcast. More precisely, the Plaintiffs Bell Media Inc., Rogers Media Inc. and Groupe TVA Inc. (the “Broadcasters”) contend that, among other things, they hold the Canadian rights to undertake the following actions pursuant to section 3 of the Copyright Act, R.S.C. 1985, c. C-42 (the Act):
(a) Communicate the Plaintiffs programs to the public by telecommunication via television broadcast, including the right to
(b) make the Plaintiffs programs available to the public by telecommunications via television broadcast in a way that allows a member of the public to have access to them from a place and at a time individually chosen by that member of the public; and
(c) authorize such acts.
[10] The broadcasting undertakings contend that they own the right to transmit television broadcasts to subscribers by various means of telecommunication, such as by satellite signal, co-axial cable, fibre optics, and hybrid fibre optics/co-axial cable.
[11] The Defendant is a software developer who has developed add-ons to an open source media player application known as KODI. Some KODI add-ons permit users to gain access to a vast amount of video content allegedly owned and distributed by the Plaintiffs. The Defendant has developed add-ons that permit users to access material which is clearly “non-infringing content”, as well as material which the Plaintiffs claim to be “infringing content”. To the extent that the add-ons developed by the Defendant permit access to allegedly “infringing content”, the Plaintiffs contend that they suffer damages. While the Defendant has not yet filed a Statement of Defence in this matter, he claims there is no violation of the Act flowing from his operations. He contends his activities are protected by subparagraph 2.4(1)(b) of the Act, which provides as follows:
[…] a person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject-matter to the public; […].
[12] The Defendant says the jurisprudence arising from the Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (SOCAN), supports his position that he is not “communicating” any content. He is merely making it accessible, much like Google and other search engines. In fact, he candidly refers to his operation as a “mini-Google”.
[13] In addition to claiming that the products developed by him are compliant with the Act, the Defendant contends that the Act provides the Plaintiffs with a potential remedy should they conclude a violation exists. He says that remedy is found in paragraph 41.27(5) of the Act, whereby the Plaintiffs may provide him notice of the alleged infringement and afford him the opportunity to remedy the violation. The Defendant contends that, if there was any violation of the Act, which he denies, the Plaintiffs employed a “bombe atomique” by requesting an Anton Piller order instead of exercising the less draconian methods available under the Act.
III. The Issues before me
[14] The Court’s role at this early stage of the litigation is clearly not to decide the merits of the case (Celanese, above, para 1). My role is to apply a de novo evaluation of the Anton Piller Order after having heard the opposing point of view (John Stagliano Inc. v. Elmaleh, 2006 FC 585 at para 110, 292 FTR 208; Canadian Private Copying Collective v Amico Imaging Services Inc, 2004 FC 469 at paras 27-28, 249 FTR 312). This requires the Court to reconsider the four requirements necessary for the issuance of an Anton Piller order, namely: (i) that there is a strong prima facie case; (ii) that the damage to the plaintiff caused by the defendant’s alleged misconduct, potential or actual, is very serious; (iii) that there is convincing evidence that the defendant has in its possession incriminating documents or things; and (iv) that there is a real possibility that the defendant may destroy such material before the discovery process can do its work (Celanese, above, at para 35; Malik, above, at para 29).
[15] With respect to the interlocutory injunction, I must determine whether the Plaintiffs have met the tripartite test set out in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 SCR 110, 38 DLR (4th) 321 (Metropolitan Stores), and RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 111 DLR (4th) 385 (RJR MacDonald). That is: (i) is there a serious issue to be tried?; (ii) have the Plaintiffs demonstrated they will suffer irreparable harm if the injunction is not granted?; and; (iii) does the balance of convenience favour the granting of the injunction? The test is conjunctive. I also note that the “strong prima facie case” requirement for the issuance of an Anton Piller order is a higher standard than the “serious issue to be tried” standard applicable to the first criteria of the test for an interlocutory injunction (Indian Manufacturing Ltd. v. Lo, [1996] 2 FCR 647, 67 CPR (3d) 132; Havana House Cigar & Tobacco Merchants Ltd. v. Doe, [1999] FCJ No. 1225 at para 27, 1 CPR (4th) 521).
IV. The Evidence
[16] In the affidavit principally relied upon by the Plaintiffs, the affiant deposes, among other things, that the Defendant’s business, known as “TVAddons”, hosts over “1500 Add-ons in total”. He also deposes that, of these 1500 Add-ons, there is a curated list of 22 Add-ons, “almost all of which are infringing Add-ons”. It follows that, from the Plaintiffs’ own evidence, just over 1% of the Add-ons developed by the Defendant are alleged to be “infringing Add-ons”. This is consistent with the Defendant’s affidavit, wherein he deposes that there are 1400 Add-ons available on the TVAddons website, the majority of which are unrelated to alleged “illegitimate Hosting Sites”.
[17] Both the Plaintiffs’ and the Defendant’s principal affiants describe the KODI software application as an “open source”, which means that it is available to the general public for use and/or modification of its original design. The Defendant deposes that the KODI application “without any add-on added to it, is used to search, execute, stream or download any type of digital files such as pictures, music, videogames, videos, interactive files, etc.”, and then goes on to say that, contrary to what is affirmed by the Plaintiffs’ affiant, “KODI is not limited to accessing content that is on the computer of the users. The KODI application includes a list of add-ons that are Web Search add-ons”. The Plaintiff’s affiant spent some time in his affidavit explaining how the Defendant would have accessed the work “Orphan Black” by using his Add-ons. The Defendant, in his affidavit, demonstrated the same search results using Google, hence his assertion that his site is a “mini-Google” and is therefore contemplated by the exceptions set out and discussed above in SOCAN.
[18] On this Review Motion, the complete hearing before the justice who granted the Anton Piller Order is to be considered. Part of that record contains the following exchange:
Justice: And on the next page, paragraph 5, so the experts would deactivate the TV Add-ons domains and sub-domains, so you really want to neutralize the Defendant’s operations?
Lawyer for the Plaintiffs: Yeah, completely.
Justice: Completely…
Lawyer for the Plaintiffs: Yeah.
Justice: So it’s more than saying you’re enjoined of not operating or communicating, you really want to neutralize the guy.
Lawyer for the Plaintiffs: Yeah, completely, that’s for sure. Yeah. We use his passwords, we shut down everything, we change the password and we change everything and it cannot be reactivated by him or by someone else. That’s the goal.
[19] According to the Anton Piller Order, the “search” was to be conducted between the hours of 8 a.m. and 8 p.m., unless it was reasonably necessary to depart from those hours. I conclude that this search includes any interview considered necessary by the independent solicitor and/or Plaintiffs’ counsel. In his affidavit, the independent solicitor deposed that on June 12, 2017, the questioning of the Defendant commenced at 2:40 p.m. and “lasted until approximately midnight”. The interrogation (my word) of the Defendant therefore lasted more than 9 hours. I acknowledge that the interrogation was interrupted, according to the independent solicitor, by dinner, and an opportunity for the Defendant to speak to his lawyer. However, it is important to note that the Defendant was not permitted to refuse to answer questions under fear of contempt proceedings, and his counsel was not permitted to clarify the answers to questions. I conclude unhesitatingly that the Defendant was subjected to an examination for discovery without any of the protections normally afforded to litigants in such circumstances (discovery). Here, I would add that the ‘questions’ were not really questions at all. They took the form of orders or directions. For example, the Defendant was told to “provide to the bailiff” or “disclose to the Plaintiffs’ solicitors”.
[20] I find the most egregious part of the questioning to be in in the independent solicitor’s affidavit, wherein he deposes that counsel for the Plaintiffs “provided Defendant Lackman with some names” of other people who might be operating similar websites. It appears the Defendant was required to associate that list of 30 names with names, addresses and other data about individuals that might have some knowledge or relationship to those names. The list and the responses of the Defendant are found on three complete pages in the exhibits of the independent solicitor’s affidavit. I conclude that those questions, posed by Plaintiffs’ counsel, were solely made in furtherance of their investigation and constituted a hunt for further evidence, as opposed to the preservation of then existing evidence.
V. Analysis
A. Anton Piller Order
[21] The Anton Pillar Order under review was purposely designed by counsel for the Plaintiffs, as admitted by them, to completely shut down the Defendant’s operations. To the Plaintiffs, it mattered not that, by their own estimate, just over 1% of the Add-ons developed by the Defendant were allegedly used to infringe copyright. I therefore conclude that the purpose of the Anton Piller Order under review was only partly designed to preserve evidence that might be destroyed or that could disappear. I am of the view that its true purpose was to destroy the livelihood of the Defendant, deny him the financial resources to finance a defence to the claim made against him, and to provide an opportunity for discovery of the Defendant in circumstances where none of the procedural safeguards of our civil justice system could be engaged.
[22] With respect to the issue of whether there exists a “strong prima facie case”, I am not convinced. While I acknowledge the purpose of this review is not to try the case, I have nevertheless assessed the strength of the case made out by the Plaintiffs. In doing so, I have carefully considered the arguments made by Defendant’s counsel in relation to his interpretation of the Act and the application of SOCAN to the facts. I have also carefully considered the affidavits offered by both the Defendant and the Plaintiffs’ affiants. I am impressed by the forthright manner in which the Defendant describes his knowledge and use of the open source KODI software and the similarities between TVAddons and Google. The actions performed by the Plaintiffs’ expert to access allegedly infringing material at TVAddons were replicated by the Defendant using Google. In my view, the jurisprudence from SOCAN becomes relevant to this issue. While the prima facie case may have appeared strong before the justice who heard the matter ex parte, the presence of the adversary in the courtroom and the arguments advanced have demonstrated there is nothing more than a serious issue to be tried. The higher threshold of a strong prima facie case is not met.
[23] In the absence of a strong prima facie case, and in the presence of an overly broad order designed to do much more than preserve evidence that might be destroyed or that might disappear, there is little purpose in conducting any further analysis on the issuance and execution of the Anton Piller Order. I conclude that it must fall. I now turn to the issue of the Interlocutory Injunction.
B. Interlocutory Injunction
[24] While I accept that there exists a serious issue to be tried, and acknowledge that the Plaintiffs may well suffer irreparable harm if the interlocutory injunction is not issued, I am not satisfied that the balance of convenience favours the granting of an interlocutory injunction.
[25] The Defendant has demonstrated he has an arguable case that he is not violating the Act. He has also deposed that TVAddons is his only source of income. If an injunction were granted by this Court, it would effectively bring this litigation to a close, as the Plaintiffs’ admittedly seek to neutralize the Defendant in such a way that it would be impossible for his add-ons to be reactivated “by him or someone else”. Furthermore, if the Defendant is “neutralized” in this way, he may lack the financial resources to mount his defence. In considering the balance of convenience, I also repeat that the Plaintiffs admit that the vast majority of add-ons are non-infringing. Whether the remaining approximately 1% are infringing is very much up for debate. For these reasons, I find the balance of convenience favours the Defendant, and no interlocutory injunction will be issued.
C. Other
[26] The Plaintiffs have requested a return of their $50,000 deposit paid as security for damages. Given that the Anton Piller Order is now declared unlawful, I leave it to the parties to negotiate the amount, if any, of that deposit that is to be forfeited to the Defendant. Failing agreement among the parties on that issue within 90 days from the issuance of this Order, they may return to this Court for argument and resolution of that issue.
[27] Finally, the Plaintiffs have requested costs to be assessed on a solicitor-client basis. The Defendant indicated that whether he should win or lose on this Review Motion, he considers it appropriate that costs be awarded in the cause. As a result, this Court will order that costs be in the cause.
THIS COURT ORDERS that:
The Interim Injunction issued by this Court on June 9, 2017 is extended, on consent of the parties until June 30, 2017 or until further order of the Court, whichever occurs first. (see paragraph (e) below);
The motion request by the Plaintiffs for a declaration that the execution of the Anton Piller Order and Interim Injunction were lawfully conducted is dismissed;
The motion request by the Plaintiffs to authorize the withdrawal from the Court of $50,000 filed on June 9, 2017 as security for damages is dismissed;
The motion request for an order that paragraphs C-17 to C-20 of the Anton Piller Order made on June 9, 2017 remain in effect until final determination of this proceeding is dismissed. For greater certainty, the Anton Piller Order is fully vacated and declared null and void;
The motion for an Interlocutory Injunction is dismissed. Effective immediately, the Interim Injunction issued on June 9, 2017 and extended on June 21, 2017 is vacated;
All remaining orders sought by the Plaintiffs in their amended Notice of Motion filed on June 16, 2017 and heard on June 21, 2017 are dismissed;
All articles seized during the execution of the Anton Piller Order, including, but not limited to phones, computers, computer equipment, records, communications or evidence proving that communications were made between the Defendant and third parties, domain names, subdomain names, passwords, login credentials, banking information, corporate registry information, information regarding hosting accounts, server information, codes, programmer information, and all transcripts and recordings of the Defendant in response to any questions put to him by any person in the course of the execution of the Anton Piller Order are to be delivered to the Defendant, and no copies of any such materials are to be maintained by independent counsel, plaintiffs, or any person other than the Defendant;
All affidavits filed by the Plaintiffs in support of the motion for an Anton Piller order are to be sealed and marked “Subject to an order of confidentiality” and placed in Court file T-800-17, and are to remain confidential and under seal until further order of the Court;
Costs are in the cause;
I will remain seized with jurisdiction over any motions or requests for directions with respect to the contents of this order.
“B. Richard Bell”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-800-17
STYLE OF CAUSE:
BELL CANADA, BELL EXPRESS VU LIMITED PARTNERSHIP, BELL MEDIA INC., VIDEOTRON S.E.N.C., GROUPE TVA INC., ROGERS COMMUNICATIONS CANADA INC., ROGERS MEDIA INC., v ADAM LACKMAN DBA TV ADDONS.AG
PLACE OF HEARING:
Montréal, Quebec
DATE OF HEARING:
June 21, 2017
REASONS FOR ORDER:
BELL J.
DATED:
June 30, 2017
APPEARANCES:
Me François Guay
Me Guillaume Lavoie St-Marie
For The Plaintiff
Me Éva Richard, Me Karim Renno
Me Hilal El Ayoubi
FOR THE DEFENDANT
SOLICITORS OF RECORD:
Me Karl Delwaide, Me Marie-Gabrielle Bélanger
Fasken Martineau DuMoulin S.E.N.C.R.L., s.r.l.
Tour de la Bourse, bureau 3700
800, rue Victoria
Montréal, QC H4Z 1E9
For The Plaintiff
Me Bernard Letarte, Me Ludovic Sirois - Attorney General of Canada - Justice Canada
Bureau SAT-6060
284 Wellington Street
Ottawa, ON K1A 0H8
for the defendant
| cluster: FACTS: This case involves a dispute between the plaintiffs, a group of Canadian broadcasters and broadcasting undertakings, and the defendant, a software developer, Adam Lackman. The plaintiffs alleged that the defendant's software, known as TVAddons, allowed users to access copyrighted content without permission. The defendant claimed that his software was compliant with the Copyright Act and that he was not communicating any content, but rather making it accessible like a search engine. The plaintiffs sought an Anton Piller order, which is a civil search warrant that allows a plaintiff to search the defendant's premises without notice, to seize evidence and preserve it. The order was granted by a justice of the Federal Court, but the defendant challenged it on a review motion. | cluster: ANALYSIS: The court's analysis was based on the principles established in the leading case of Celanese Canada Inc. v. Murray Demolition Corporation, which sets out the conditions necessary for the issuance of an Anton Piller order. The court found that the plaintiffs had failed to meet these conditions, particularly with respect to the prima facie case and the scope of the order. The court also considered the defendant's argument that his software was compliant with the Copyright Act and that he was not communicating any content, but rather making it accessible like a search engine. The court found that this argument had merit and that the plaintiffs had not met the requirements for an interlocutory injunction. |
* Loss: [MultipleNegativesRankingLoss](https://sbert.net/docs/package_reference/sentence_transformer/losses.html#multiplenegativesrankingloss) with these parameters:
```json
{
"scale": 20.0,
"similarity_fct": "cos_sim"
}
```
### Evaluation Dataset
#### Unnamed Dataset
* Size: 1,500 evaluation samples
* Columns: anchor, positive, and negative
* Approximate statistics based on the first 1000 samples:
| | anchor | positive | negative |
|:--------|:----------------------------------------------------------------------------------------|:--------------------------------------------------------------------------------------|:-------------------------------------------------------------------------------------|
| type | string | string | string |
| details | - min: 370 tokens
- mean: 2955.16 tokens
- max: 6550 tokens
| - min: 32 tokens
- mean: 213.29 tokens
- max: 1042 tokens
| - min: 27 tokens
- mean: 206.64 tokens
- max: 973 tokens
|
* Samples:
| anchor | positive | negative |
|:------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------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| cluster: FACTS: Murphy v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-11-02
Neutral citation
2016 FC 1208
File numbers
T-192-16
Decision Content
Date: 20161102
Docket: T-192-16
Citation: 2016 FC 1208
Ottawa, Ontario, November 2, 2016
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
DAPHNE MURPHY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter [1] This is an application for judicial review brought by Daphne Murphy [the Applicant] under s. 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a decision made on October 8, 2015, by a member of the Social Security Tribunal – Appeal Division (SST-AD) [SST-AD Decision] denying the Applicant’s application for leave to appeal. The Applicant sought leave in order to appeal a decision of the Social Security Tribunal – General Division (SST-GD) made on August 28, 2015 [SST-GD Decision], which had dismissed the Applicant’s appeal from a decision denying her application for Canada Pension Plan (CPP) disability benefits.
[2] The Applicant is a self-represented litigant. She designated her husband as a representative to assist her after suffering a stroke in November 2011.
[3] Judicial review is granted for the following reasons.
II. Facts [4] The Applicant is a 58-year-old woman from Gander, Newfoundland. The record shows that she has a significant speech impairment, which was apparent at the hearing. She advises she was unable to speak until she was 7 years old. She obtained a grade 8 education. She married in 1979 and it appears she divorced in 1993. Her husband was in the armed forces. She has two children.
[5] She has a very extensive history of attendances on physicians. A very large number of visits to various doctors and associated reports are documented in the Certified Tribunal Record (CTR) from 2011 going back to the 1990s.
[6] She is able to access the CPP through credits accumulated by way of credit-splitting with her former husband from 1979 to 1993. The record indicates she was not otherwise working; she was raising her two children and advises she was doing some babysitting to make her own money. She also has contributions from her own work in 2007 and 2008, but they were not sufficient to entitle her to disability under the Canada Pension Plan, RSC 1985, c C-8 [CPP Act]. This will be discussed in more detail later.
[7] Her application for a CPP disability pension was made under the ‘late application provisions’, the effect of which is that she may obtain a CPP disability pension if she establishes she was severely disabled (as defined) as of December 31, 1997, and remained severely disabled continuously since then.
[8] The SST-AD conceded the Applicant is currently disabled as a consequence of injuries to her right knee sustained in a fall on September 1, 2009, and damages resulting from a stroke on November 29, 2011. Following the stroke, the Applicant has not been able to work. She has trouble speaking, spelling and walking without a cane or walker. She is only able to walk a little distance before her knee gives out on her and as a result, she is continuously falling. She drags her foot when walking and requires assistance in order to shower, bathe, eat, go for walks and/or do housework. As noted, she has a significant speech impairment – she stutters and therefore has trouble expressing her thoughts.
[9] Therefore, the issue is not whether she is severely disabled now; the issues are whether she was severely disabled as of December 1997, and whether she has remained so continuously.
[10] On April 19, 2011, the Applicant’s claim for disability benefits was denied [Denial Letter]. On January 18, 2012, her claim was again denied after reconsideration by CPP staff [Reconsideration Denial Letter]. The Denial Letter included a list of documents that had been reviewed and considered and specific factors that were considered in coming to a decision. It provided the following as the basis for denial:
We recognize you have identified limitations resulting from your knee injury and we realize that you may not have been able to do labour intensive work since 2009. However, we concluded that your condition did not start until 2009 and this would not have any effect or [sic] an ability to work in December 1997.
[11] She appealed to the SST-GD.
[12] One relevant factor in the Applicant’s appeal was her work experience. Her contact with the workplace between 1979 and 2011 was minimal. She only made work-related contributions to CPP in 2 of those 32 years, namely 2007 and 2008. She did not work enough in either 2006 or 2010 to warrant CPP premiums, and the small premium she paid in 2006 ($60.53) was refunded. She made no payment in 2010. According to the Respondent’s Record, she worked six months at Tim Hortons’s in Windsor, Nova Scotia, three weeks at Baskin Robbins and two months at Swiss Chalet in Sackville, Nova Scotia. As I mentioned earlier, she also did some babysitting a long time ago.
[13] The Applicant’s appeal to the SST-GD was a paper appeal. In other words, although the Applicant might have had a de novo hearing, the matter proceeded without a hearing on the basis of a file review. The Applicant was given notice that the SST-GD intended to conduct a paper appeal; she was invited to comment and submit additional material, but took no position in that regard. In its decision, the SST-GD explained its reasons for conducting a paper appeal:
[2] The hearing of this appeal was by decision on the record for the following reasons:
a) The issues under appeal are not complex;
b) There are no gaps in the information in the file or need for clarification;
c) Credibility is not a prevailing issue;
d) The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
[14] I pause to note that the paper record before the SST-GD contained a notation by CPP staff, dated September 28, 2011, that the Applicant had a “significant speech impairment.” The same note states that: “[H]er speech impediment prevents her from doing phone work as well as her education.” The decision by the SST-GD to proceed without an oral hearing does not refer to this notation, nor to the Applicant’s speech impairment.
[15] Based on its paper review, the SST-GD denied the Applicant’s appeal. The SST-GD found that the Applicant failed to prove, on a balance of probabilities, that she had a severe and prolonged disability on or before her minimum qualifying period (MQP) of December 31, 1997.
[16] On the issue of the severity of the Applicant’s disability, the SST-GD stated:
[16] There is very little medical evidence prior to the Appellant’s MQP [the date her minimum qualifying period ended, i.e., December 31, 1997]. The evidence on file indicates the Appellant suffered from general medical ailments. The evidence also indicates that the Appellant was able to work for numerous years and attend school after her MQP. Her education and limited work experience may present barriers to employment, but the Tribunal must consider her medical condition as the primary factor.
[emphasis added]
[17] Although the SST-GD acknowledged that the Applicant was unable to work at the time of its review, it concluded that there was “no evidence to support that [the Applicant] had a severe disability on or before December 31, 1997 that continues to this day.” Because the test for disability under the CPP Act is conjunctive, the Member did not make a finding on the prolonged criterion.
[18] The Applicant sought leave to appeal to the SST-AD, which denied her application on October 8, 2015.
III. Decision under Review [19] The SST-AD indicated that, in order to succeed on an application for leave to appeal to the SST-AD under the Department of Employment and Social Development Act, SC 2005, c 34 (DESDA), the Applicant must present some arguable ground upon which the proposed appeal might succeed, citing Kerth v Canada (Minister of Development), [1999] FCJ No 1252 (FC) [Kerth]. The SST-AD also cited case law for the proposition that an arguable case is “akin to whether legally an applicant has a reasonable chance of success”: Canada (Minister of Human Resources Development v Hogervorst, 2007 FCA 41; Fancy v Canada (Attorney General), 2010 FCA 63.
[20] The SST-AD noted that, pursuant to s. 58(1) of DESDA, there are only three grounds under which an appeal to the SST-AD can be considered:
a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[21] The SST-AD member made the following findings:
[6] The Applicant requested leave to appeal on the basis that she disagreed with the General Division decision. She set out her physical limitations to support this argument. I accept that the Applicant currently has these limitations. The General Division decision correctly stated, however, that in order for the Applicant to receive a Canada Pension Plan disability pension, she had to have been disabled on or before December 31, 1997. It clearly set out the basis for its conclusion that the Applicant was not disabled at that time.
[7] The Applicant’s arguments in support of her request for leave to appeal do not point to any error made by the General Division, or to any breach of the principles of natural justice. Therefore, they are not grounds of appeal under the Act.
[8] The Applicant also argued that she needed money to pay for medication. This argument also does not point to any error or to a breach of natural justice by the General Division. Leave to appeal cannot be granted on this basis.
[22] The SST-AD found that the Applicant had not presented a ground under s. 58 of DESDA upon which she had a reasonable chance of success and consequently denied her application for leave to appeal.
[23] It is from this decision that the Applicant seeks judicial review.
IV. Issues [24] This matter raises the following issues:
1. Whether the SST-AD member’s finding that the Applicant did not present a ground of appeal with a reasonable chance of success under s. 58 of DESDA was reasonable?
2. Whether there is an arguable issue under any of the grounds provided in s. 58(1) of DESDA?
3. Whether the Member acted unreasonably in finding that there was no reasonable chance for success pursuant to s. 58(2) of DESDA, considering the evidence provided by the Applicant and the law surrounding the definition of “severe”?
V. Standard of Review [25] In Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.” The Respondent correctly submits that the decision by the SST-AD granting or refusing leave to appeal should be reviewed in this Court on the reasonableness standard: Tracey v Canada (Attorney General), 2015 FC 1300 at para 17; Canada (Attorney General) v Hoffman, 2015 FC 1348 at para 27. In addition, Canada (Attorney General) v O’Keefe, 2016 FC 503 at para 17 indicates that “substantial deference” should be given to the SST-AD.
[26] In Dunsmuir at para 47, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness standard of review:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
VI. Relevant Provisions [27] DESDA governs the operation of the Social Security Tribunal. The grounds for appeal are specifically set out in s. 58(1) of DESDA. The grounds for granting leave to appeal are set out in s. 58(2):
Grounds of appeal
Moyens d’appel
58 (1) The only grounds of appeal are that
58 (1) Les seuls moyens d’appel sont les suivants :
(a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
a) la division générale n’a pas observé un principe de justice naturelle ou a autrement excédé ou refusé d’exercer sa compétence;
(b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
b) elle a rendu une décision entachée d’une erreur de droit, que l’erreur ressorte ou non à la lecture du dossier;
(c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
c) elle a fondé sa décision sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.
Criteria
Critère
(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
(2) La division d’appel rejette la demande de permission d’en appeler si elle est convaincue que l’appel n’a aucune chance raisonnable de succès.
Decision
Décision
(3) The Appeal Division must either grant or refuse leave to appeal.
(3) Elle accorde ou refuse cette permission.
[28] The requirements for disability benefits are set out in sections 42 and 44 of the CPP Act. Subsection 44(1)(b)(ii) is referred to as the ‘late applicant provision’ and applies to the Applicant in this case. Under section 44(1)(b)(ii), a disability pension may be paid to a contributor:
• Who has not reached 65 years of age;
• To whom no retirement pension is payable;
• Who is disabled; and,
• Who is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if an application for a disability pension had been received before the contributor’s application for a disability pension was actually received.
[29] Subsection 42(2) sets out when a person is deemed disabled. A person is considered disabled when they have a “severe and prolonged” mental or physical disability. A disability is considered “severe” when it renders the person incapable regularly of pursuing any substantially gainful occupation: CPP Act s. 42(2)(a)(i). A disability is considered “prolonged” where it is likely to be long continued and of indefinite duration or is likely to result in death: CPP Act s. 42(2)(a)(ii). This section is conjunctive; a person must satisfy both the “severe” and “prolonged” criteria in order to be found disabled within the meaning of the CPP Act. If they fail to satisfy one of the two criteria, the other need not be assessed. Paragraph 42(2)(b) puts a temporal limit on when a person may be deemed disabled.
VII. Analysis [30] In my respectful view, judicial review should be granted in this case.
[31] I say this because, on the critical issue of the severity of the Applicant’s disability, the SST-GD misapprehended critical and central evidence concerning the Applicant’s attachment to the workplace, thereby erring in law and basing its decision on an erroneous finding of fact without regard for the material before it, which in my respectful opinion are both bases upon which the SST-AD acting reasonably ought to have granted leave to appeal.
[32] This critical misapprehension occurs in the following passage of the reasons of the SST-GD:
The evidence also indicates that the Appellant was able to work for numerous years and attend school after her MQP.
[emphasis added]
[33] The case turned on the Applicant’s employability, that is, her ability to work. This finding is of central importance because it misstates the nature of the Applicant’s ability to work, and does so in a manner that is not defensible on the record because it is contrary to the record.
[34] There was in fact no evidence that the Applicant was able to work for a single continuous year, let alone the “numerous years” found by the SST-GD. The facts of this case do not support the finding that she “was able to work for numerous years”.
[35] Indeed, the record shows that over the relevant 32 year period (1979 to 2011), the Applicant’s attachment to the workforce was extremely limited: her short term work in 2007 (in Newfoundland) and 2008 (in Nova Scotia) and very little else except babysitting many years ago in Newfoundland. In my respectful view, the SST-GD’s conclusion regarding the Applicant’s workforce attachment was not supported by the evidence before it. The decision is based on a misapprehension of the evidence; in addition, in this central respect, there is no evidence to support it which is an error of law.
[36] In my respectful view, this misapprehension of the evidence, and the absence of evidentiary support, reasonably meets the test set out in paragraph 58(1)(c) of DESDA which provides that a ground of appeal exists where the SST-GD “based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”. This finding also constituted an error of law per paragraph 58(1)(b) of DESDA. In my view, the Applicant therefore had two arguable grounds upon which her proposed appeal might succeed per Kerth; the Applicant has a reasonable chance of success on these grounds.
[37] In my view, a proper consideration of the evidence may have led to a different outcome, namely the grant of leave to appeal with the possible result that the SST-AD would refer the matter to the General Division for redetermination pursuant to s. 59(1) of DESDA, or grant other relief.
[38] As a consequence, the SST-AD’s decision was not reasonable because it was not justified on the facts and law, as Dunsmuir requires. In my view, this aspect of the decision’s unreasonableness is sufficient basis on which to grant judicial review.
[39] I wish to add that the Applicant, during the hearing before me, said that she was unable to obtain work because of her speech impediment, which, as was noted by CPP staff, is a significant impairment. She advised that employers she contacted declined to hire her because her speech impediment would be disruptive to other staff and upsetting to customers. She stated she was not wanted because of the speech impediment she was born with. She said she could not even get employment in a back room of a chain restaurant because of her speech impediment. She says she was dismissed on account of her speech impairment. She challenges one record suggesting otherwise: an employer said she ceased working because she moved and, although she had moved, it was only from Sackville to Bedford, which she said is a 20 minute drive.
[40] The jurisprudence, as the SST-GD acknowledged, establishes that the ‘severity’ criteria for CPP disability pension purposes must be assessed in a “real world” context: Villani v Canada (A.G.), 2001 FCA 248, which entails keeping in mind factors such as age, level of education, language proficiency and past work, life experience and, importantly, employability.
[41] In my view, in making these verbal submissions to the Court at the hearing, the Applicant raises her “real world” considerations which, if accepted, might entitle her to the disability pension she seeks because these submissions speak directly to the core issue of her employability. Villani requires consideration of the “real world” matters of her significant speech impediment, and employability which may be related, in the assessment of her alleged severe disability.
[42] The Federal Court of Appeal describes the “real world” approach. In the words of Isaac, J.A. (as he then was):
[33] The “real world” approach was first adopted by the Board in Edward Leduc v. Minister of National Health and Welfare, CCH Canadian Employment Benefits and Pension Guide Reports, Transfer Binder 1986-1992 at ¶ 8546, pp. 6021-6022 (January 29, 1988). In that case, the Board found for the applicant on the following basis:
The Board is advised by medical authority that despite the handicaps under which the Appellant is suffering, there might exist the possibility that he might be able to pursue some unspecified form of substantially gainful employment. In an abstract and theoretical sense, this might well be true. However, the Appellant does not live in an abstract and theoretical world. He lives in a real world, people [sic] by real employers who are required to face up to the realities of commercial enterprise. The question is whether it is realistic to postulate that, given all of the Appellant’s well documented difficulties, any employer would even remotely consider engaging the Appellant. This Board cannot envision any circumstances in which such might be the case. In the Board’s opinion, the Appellant, Edward Leduc, is for all intents and purposes, unemployable.
[43] The Federal Court of Appeal in Villani requires that the SST-GD and SST-AD interpret and apply the CPP Act in a large and liberal manner: paragraph 27 of Villani states:
In Canada, courts have been especially careful to apply a liberal construction to so-called ‘social legislation.’ In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para 36, the Supreme Court emphasized that benefits-conferring legislation ought to be interpreted in a broad and generous manner and that any doubt arising form the language of such legislation ought to be resolved in favour of the claimant…. has been adopted in a number of Supreme Court decisions dealing with the Unemployment Insurance Act, 1971.
[44] At paragraph 28, Villani also notes that the CPP Act is benefits-conferring legislation, and at para 29 states that any ambiguity flowing from its words must be resolved in favour of a claimant for disability benefits. Also of importance for the case at bar is that Villani requires that the proper application of the severity test involves consideration of the applicant’s employability:
44 In my respectful view, the Board has invoked the wrong legal test for disability insofar as it relates to the requirement that such disability must be "severe". The proper test for severity is the one that treats each word in the definition as contributing something to the statutory requirement. Those words, read together, suggest that the severity test involves an aspect of employability.
[45] The failure to reasonably determine the Applicant’s workforce attachment means that her Villani real-world assessment was incomplete at best. This is further reason why judicial review must be granted. The Applicant had a statute-established right, supported by the case law, to a more comprehensive disability review that considers her employability in the “real world” in which she lived and lives. In my view, she did not have such a review.
[46] In this connection, I doubt very much that a proper Villani assessment may take place without a de novo hearing before the SST-GD given her limited education and limited ability to make written representations, her speech impediment as documented by CPP staff, coupled with the difficulty she has expressing her thoughts.
[47] While the Applicant did not explicitly raise these real world considerations in her written filings, they certainly were on the record as a result of her discussions with CPP staff. As outlined above, the paper record reviewed by the SST-GD contained a CPP staff member’s note that the Applicant had a “significant speech impairment”. In addition, to reiterate, the same CPP staff stated that: “[H]er speech impediment prevents her from doing phone work as well as her education.”
[48] Importantly, this Applicant is still in the system and in my view should have an opportunity to have these considerations addressed; they are important to her, they were raised on the record, but were not considered either by the SST-GD, or by the SST-AD. In my respectful view, it is not safe to leave them unaddressed.
[49] In my view, the Applicant’s “real world” issues and employability are best assessed in a de novo appeal before the SST-GD.
[50] I am concerned as all parties must be with delay in resolving the Applicant’s rights. Her significant speech impediment and “real world” situation and employability were first documented by CPP staff more than five years ago: the relevant CPP’s Development Contact Record is dated September 28, 2011. Given this and the importance of bringing this matter to a resolution, and in light of the fact that the Applicant is now disabled, and considering subsection 18.3(3) of the Federal Courts Act, I considered but decided against directing that the SST-AD cause the SST-GD to proceed with a fresh appeal de novo so that the Applicant’s real world employability may be assessed as required by Villani, together with other issues the Applicant may raise. I decline to do so because this is a matter for the SST-AD to determine.
VIII. Conclusion [51] Judicial review is granted.
IX. Costs [52] The Respondent did not seek costs; in my view this is not a case for costs.
X. Procedural Note – Style of Cause [53] The Respondent correctly requests that the style of cause in this matter be amended to show the respondent as the Attorney General of Canada. The Applicant consents and therefore it is so ordered, effective immediately.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The style of cause is amended to show the Attorney General of Canada as the Respondent, effective immediately.
2. Judicial review is granted and the Decision of the SST-AD dated October 8, 2015 is set aside.
3. This matter is remitted to a differently constituted SST-AD for redetermination.
4. There is no order as to costs.
"Henry S. Brown"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-192-16
STYLE OF CAUSE:
DAPHNE MURPHY v THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:
Halifax, Nova Scotia
DATE OF HEARING:
SEPTEMBER 13, 2016
JUDGMENT AND reasons:
BROWN J.
DATED:
NOVEMBER 2, 2016
APPEARANCES:
Daphne Murphy
ON HER OWN BEHALF
Hasan Junaid
For The Respondent
SOLICITORS OF RECORD:
- NIL -
self-represented Applicant
William F. Pentney
Deputy Attorney General of Canada
Department of Justice
ESDC Legal Services
Gatineau, Quebec
For The Respondent
| cluster: FACTS: The person concerned, a 58-year-old woman from Gander, Newfoundland, applied for Canada Pension Plan (CPP) disability benefits. She had a significant speech impairment and was unable to work due to a stroke she suffered in 2011 and a knee injury she sustained in 2009. She had a limited education and work experience, with only a few short-term jobs between 1979 and 2011. Her application was initially denied in 2011 and again in 2012 after reconsideration. She appealed the decision to the Social Security Tribunal – General Division (SST-GD), which conducted a paper appeal and denied her application in 2015. The SST-GD found that she failed to prove that she had a severe and prolonged disability on or before December 31, 1997, the minimum qualifying period (MQP) for CPP disability benefits. The person concerned then sought leave to appeal to the Social Security Tribunal – Appeal Division (SST-AD), which denied her application in 2015. She subsequently applied for judicial review of the SST-AD's decision. | cluster: CONCLUSION: In conclusion, the court's decision in this case was based on the principle that the SST must interpret and apply the CPP Act in a liberal and generous manner. The court found that the SST-GD and SST-AD had failed to apply this principle in the person concerned's case, and that their decisions were therefore unreasonable. The court's decision was also based on the principle that the person concerned had a right to a more comprehensive disability review that considers her employability in the real world. The court's conclusion was that the SST-AD's decision was not reasonable and that the matter should be remitted to a differently constituted SST-AD for redetermination. |
| cluster: CONCLUSION: Altamirano v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2023-07-19
Neutral citation
2023 FC 989
File numbers
IMM-4441-22
Decision Content
Date: 20230719
Docket: IMM-4441-22
Citation: 2023 FC 989
Ottawa, Ontario, July 19, 2023
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN:
JOEL MARTINEZ ALTAMIRANO
EUSEBIA ROSALIA REYES LUNA
ABAD GILBERTO MORA REYES AZUCENA MORA REYES GAEL MARTINEZ MORA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview [1] The Applicants seek judicial review of a decision of the Refugee Appeal Division (“RAD”) dated April 26, 2022, confirming the determination of the Refugee Protection Division (“RPD”) that the Applicants are neither Convention refugees nor persons in need of protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
[2] The RAD upheld the RPD’s refusal of the refugee claim on the basis that the Applicants have a viable internal flight alternative (“IFA”) in Merida, Mexico.
[3] The Applicants submit that the RAD mischaracterized the Applicants’ nexus to one of the Convention grounds enumerated under section 2(1) of IRPA, and conducted an unreasonable assessment of the IFA in light of the Applicants’ evidence.
[4] For the reasons that follow, I find that the RAD’s decision is reasonable. This application for judicial review is therefore dismissed.
II. Facts
A. The Applicants [5] Joel Martinez Altamirano (the “Principal Applicant”), his wife, Azucena Mora Reyes (the “Associate Applicant Azucena”), and their child, Gael Martinez Mora (the “Minor Applicant”), are citizens of Mexico. The Principal Applicant’s mother-in-law, Eusebia Rosalia Reyes Luna (the “Associate Applicant Eusebia”) and brother-in-law, Abad Gilberto Mora Reyes (the “Associate Applicant Abad”), are also citizens of Mexico.
[6] The Associate Applicant Eusebia and her four sons—Jorgé, Ulises, Neftali, and the Associate Applicant Abad—owned a butcher shop in Tehuacán, Puebla, Mexico. The Associate Applicant Azucena assisted at the shop on weekends.
[7] In August 2017, the Applicants claim that Neftali received a phone call from a member of the Jalisco New Generation Cartel (“CJNG”), demanding protection money to continue operating the family business. Neftali hung up the call.
[8] In September 2017, the Associate Applicant Abad allegedly received a threatening phone call from a CJNG commander. The Associate Applicant Abad travelled to Canada in November 2017 due to stress associated with this call, but returned to Mexico in December 2018.
[9] In June 2018, Jorgé allegedly received a phone call from a CJNG member demanding money. The Applicants claim that this phone call prompted Jorgé to travel to Canada in June 2018. He made a claim for refugee protection in March 2019, but later withdrew his claim.
[10] On January 28, 2019, the Associate Applicant Eusebia allegedly received a phone call from the CJNG, informing her that they had kidnapped her son, Ulises, and demanding a ransom of 1 million pesos. The Applicants claim that they paid the CJNG a ransom of 200,000 pesos. When the money was paid, CJMG released Ulises on January 31, 2019, after which he relocated to San Quintin, Baja California, Mexico, where he currently resides.
[11] In February 2019, the Associate Applicant Azucena allegedly began receiving phone calls from unknown numbers. On March 22, 2019, the Associate Applicant Azucena, the Principal Applicant, and the Minor Applicant arrived in Canada and made claims for refugee protection on arrival. Fearing that he would also be kidnapped, the Associate Applicant Abad returned to Canada in March 2019 and made a claim for refugee protection. In August 2019, the Associate Applicant Eusebia travelled to Canada and made a claim for refugee protection.
[12] In October 2019, Jorgé returned to Mexico. Upon his return, he relocated to San Quintin, Baja California, Mexico to reside with his brother, Ulises. Neftali relocated to Laredo, Nuevo Leon. Neftali manages the family business in Puebla from his residence in Baja California.
[13] The Applicants testified that Neftali received phone calls from unknown numbers, that there was a suspicious van parked outside the family residence approximately a year after Ulises’ kidnapping, and that their neighbours received phone calls asking for the Associate Applicant Eusebia’s whereabouts.
[14] The Applicants’ refugee claims are based on the fear of persecution or harm in Mexico at the hands of the CJNG cartel for failing to pay the total amount demanded as ransom for the kidnapping of Ulises.
B. RPD Decision [15] In a decision dated December 30, 2021, the RPD found that the Applicants are neither Convention refugees nor persons in need of protection pursuant to sections 96 and 97 of IRPA, on the basis that they have a viable IFA in Merida.
[16] The RPD found that while the Applicants’ allege that they are victims of criminality by the CJNG; there is insufficient evidence to establish a nexus between these acts and any of the enumerated Convention grounds. The RPD therefore concluded that the Applicants’ claims must be assessed under section 97(1) of IRPA.
[17] The RPD found that the Applicants have a viable IFA in Merida. The test to determine a viable IFA requires that: (1) there is no serious possibility of persecution or risk of harm in the IFA, and (2) it is reasonable in the Applicant’s circumstances to relocate to the IFA (Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706). The second prong of the test places a high evidentiary burden on the Applicant to demonstrate that relocation to the IFA would be unreasonable (Ranganathan v Canada (Minister of Citizenship and Immigration), 2003 FC 1367) (“Ranganathan”).
[18] On the first prong of the test, the RPD first noted that Mexico is a large country that allows for freedom of movement and a right to travel within the country. The RPD found that the National Documentation Package (“NDP”) for Mexico provided mixed information about whether the CJNG has a presence or influence in Yucatan. According to the NDP, the CJNG is a “national cartel” and the “most dangerous and largest” cartel in Mexico. Although the NDP states that the CJNG has presence throughout Mexico, it also states that the CJNG is not present in Merida or anywhere in Yucatan.
[19] However, the RPD found no reliable evidence that the CJNG has attempted to locate the Applicants since they left Mexico, Ulises or Jorgé in San Quintin, or Neftali in Laredo. The RPD also found that the Applicants’ testimony regarding suspicious phone calls from unknown numbers, their neighbours receiving phone calls asking for the Associate Applicant Eusebia’s whereabouts, or a suspicious truck parked outside their family is speculative and does not substantiate their claims that they are being pursued by CJNG. The RPD found no evidence to explain why the cartel would rekindle their interest in the Applicants since they left Mexico.
[20] The RPD found that while the NDP evidence confirms that criminal organizations in Mexico extort profitable business owners, the NDP does not specifically state that CJNG members pursue individuals that have failed to pay extortion fees throughout Mexico, only that a criminal organization may be motivated to track someone in Mexico if they owe a large debt, are the object of a vendetta, or refused to work for the gang. The NDP does not specify the amount of unpaid debt that would motivate an organization like CJNG to pursue an individual throughout Mexico. The RPD found that based on this evidence, the Applicants do not have the profile of people whom the CJNG would pursue across Mexico.
[21] The RPD accepted the objective evidence stating that the CJNG have various means to locate their targets and that they have sophisticated methods of communicating with one another. However, the RPD found limited evidence to demonstrate that the CJNG would be motivated to pursue the Applicants in Merida, and that the NDP does not mention CJNG using any of its sophisticated methods of communication to track those who refuse to pay extortion fees. For these reasons, the RPD found that on the basis of the available evidence, the Applicants do not face a risk of harm or danger of torture at the hands of the CJNG in Merida.
[22] At the second prong of the test for an IFA, the RPD noted the high threshold that must be met for the Applicants to demonstrate that relocation to the proposed IFA is unreasonable, requiring proof of adverse conditions that would jeopardize their lives and safety, such that relocation would be unduly harsh (Ranganathan at para 15; Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589 at 598 (CA)).
[23] The RPD acknowledged the Applicants’ contention that relocating their business in Merida, once again making them vulnerable to extortion. The RPD found that this is a generalized risk faced by all business in Mexico and does not preclude relocation. The RPD further found insufficient evidence to show that the Applicants could not find other employment opportunities, given their individual employment experience. The RPD noted that the Applicants are all educated and although they may encounter difficulties in finding employment and housing in Merida, their past experiences would help them to find work and accommodation. The RPD further noted that women face gender-based discrimination in Yucatan, but found that relocation is not unreasonable for both the Associate Applicants Azucena and Eusebia, considering their individual circumstances and their history of gainful employment.
[24] The RPD ultimately found that the Applicants failed to discharge their burden under the second prong of the IFA test and, in turn, relocation to Merida is reasonable in light of the evidence and circumstances.
C. Decision under Review [25] In a decision dated April 26, 2022, the RAD dismissed the Applicants’ appeal and confirmed the RPD’s finding that the Applicants have a viable IFA in Merida.
(1) Nexus with a Convention Ground [26] On appeal, the Applicants submitted that the RPD erred in finding that their claims failed to establish a nexus between their fear of persecution and an enumerated Convention ground, specifically in ignoring the ground of political opinion or membership in a particular social group, that group being successful business owners.
[27] The RAD found that the Applicants’ particular circumstances do not meet the definitions for either of these enumerated grounds. The RAD noted that the relevant question is whether the agent of persecution considers the Applicants’ conduct to be political or attributes political activities to them (Inzunza v Canada (Employment and Immigration), 1979 CanLII 2530 (FCA)). The RAD found that there is no evidence that the CJNG cartel has viewed the Applicants’ actions as being political in nature and persecuted them on this basis, or that the cartel kidnapped people for political reasons rather than criminal activity for the purpose of obtaining ransom money. The RAD further found that being a business owner does not qualify within the three broad categories of a “particularly social group” outlined in Canada (Attorney General) v Ward, [1993] 2 SCR 689.
(2) IFA [28] The RAD found that the RPD erred in its finding with respect to the cartel’s means to locate the Applicants, but that it did not err in finding that the CJNG lacks the motivation to pursue the Applicants in the IFA or that the Applicants failed to demonstrate that relocation to the IFA is unreasonable.
[29] In assessing the cartel’s means to locate the Applicants, the RAD found that, contrary to the RPD’s finding, the NDP evidence demonstrates that the cartel is present in any proposed IFA location and that it would consequently have the means to locate the Applicants throughout Mexico, including in the state of Yucatan. That being said, the RAD agreed with the RPD’s finding that there is insufficient evidence to demonstrate that the CJNG was motivated to pursue the Applicants throughout Mexico. The RAD acknowledged the Applicants’ submission that the CJNG remains motivated to locate them for making only a partial payment of the ransom demanded for the release of Ulises, but ultimately found that their belief in the cartel’s motivation is unsubstantiated by evidence on the record. The RAD cited this Court’s decision in Olusola v Canada (Citizenship and Immigration), 2020 FC 799 (“Olusola”) for the proposition that while a claimant’s sworn testimony creates the presumption of truthfulness, this is “not a presumption that everything the witness believes to be true, but has no direct knowledge of, is actually true” (Olusola at para 25).
[30] The RAD further noted that the CJNG’s threatening demands and kidnapping of Ulises were actions associated with the Applicants’ successful business, rather than borne out of a personal vendetta. Therefore, the current operation of the butchery business by Neftali would result in Neftali becoming the target of the cartel’s demands. However, the Applicants testified that they are unaware of any attempts by the cartel to contact their family members in Mexico. The RAD found that the lack of evidence demonstrating the cartel’s efforts to pursue the Applicants for their continuing business, specifically those family members who have relocated to other parts of Mexico, is indicative of a lack of motivation to pursue the Applicants in the proposed IFA.
[31] On appeal, the Applicants submitted that the RPD erred in its assessment of the second prong of the IFA test, concerning whether the Applicants’ relocation to the proposed IFA is reasonable. In support of this submission, the Applicants cited this Court’s decisions in Zaytoun v Canada (Citizenship and Immigration), 2014 FC 939 (“Zaytoun”) and Cruz Martinez v Canada (Citizenship and Immigration), 2008 FC 399 (“Cruz Martinez”).
[32] The RAD found that the Applicants’ circumstances can be differentiated from those in Zaytoun because unlike the applicant in that case, the Applicants are undistinguishable from a majority of the population by religion or by surname. The RAD acknowledged the Applicants’ reliance on Cruz Martinez for the proposition that the decision-maker must demonstrate that an IFA is qualitatively different from parts of the country where there is a reasonable chance of persecution. However, the RAD found that Cruz Martinez does not displace the burden on an applicant to establish that relocation to the proposed IFA is unreasonable. The RAD found that the RPD reasonably assessed the issue of the cartel’s motivation and was not required to demonstrate that the proposed IFA is qualitatively different than other regions of Mexico because the burden of proof remains with the Applicants.
[33] Noting that the Applicants made no further submissions on appeal concerning the second prong of the IFA test, the RAD agreed with the RPD’s finding that the Applicants’ failed to discharge their burden to establish that relocation to Merida would be unreasonable in their circumstances. For these reasons, the RAD dismissed the appeal and upheld the RPD’s decision.
III. Issue and Standard of Review
[34] The sole issue is whether the RAD’s decision is reasonable.
[35] The standard of review is not disputed. The parties agree that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25) (“Vavilov”). I agree.
[36] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[37] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep” (Vavilov at para 100; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 36).
IV. Analysis
[38] The Applicants submit that the RAD erroneously found that their claims do not establish a nexus with a Convention ground and that they have a viable IFA in Merida, rendering the decision unreasonable.
[39] In my view, the RAD did not err in either of these aspects. It reasonably found that the Applicants’ claims do not establish a nexus with a Convention ground and conducted a reasonable analysis of the IFA.
A. Nexus with a Convention Ground [40] The Applicants submit that the RAD erred in finding insufficient evidence to establish that the cartel’s actions were motivated by an enumerated Convention ground, particularly the ground of membership in a social group. Specifically, the Applicants contend that the RAD mischaracterized the relevant social group in the Applicants’ case as being business owners, when it should have considered the Applicants’ membership in the social group of people who have failed to pay ransom to a criminal organization.
[41] The Applicants rely on Loyo de Xicara v Canada (Citizenship and Immigration), 2013 FC 593 (“Loyo de Xicara”), where this Court found that the RPD unreasonably determined that “a personalized risk or threat loses this characteristic based on the mere fact that the criminal conduct in question is common in a given country” (at para 24). The Applicants also rely on Benegas v Canada (Citizenship and Immigration), 2015 FC 45 (“Benegas”), where this Court found that the RPD unreasonably concluded that the attacks against the applicant were not motivated by his political opinion, without regard to the fact that the applicant can be easily identified as a resistor to recruitment by his visible scars from previous attacks (at para 34).
[42] The Respondent submits that the Applicants’ submissions on this issue lack merit because the Applicants testified that although they paid less than the amount that was demanded as ransom for the release of Ulises, it nonetheless secured his release. The Respondent submits that given these facts, the Applicants fail to show that they should have been assessed as part of the social group of people who failed to pay ransom to the CJNG.
[43] I first note that the Applicants’ submissions do not expand on how the factual scenarios or legal findings in either Loyo de Xicara or Benegas is applicable to their circumstances. The RAD’s reasons do not state that there is no nexus between the cartel’s actions and the Convention grounds of political opinion or membership in a social group because the cartel’s actions are common and therefore constitute a generalized risk.
[44] I do not find that the RAD erred by failing to consider the nexus between the Applicants’ claims and their membership in the social group of people who have not paid the full amount of ransom demanded by criminal organizations. The Applicants’ evidence reveals that although they did not pay the full amount, the payment ultimately secured the release of Ulises. It is reasonable for the RAD not to consider the potential nexus between the Applicants’ claims and their membership in the social group of those who do not pay ransom amounts as demanded. This is also reasonable in light of the minimal evidence proffered by the Applicants to demonstrate that they, or other members of their family in Mexico, have been pursued on the basis of their failure to pay the full ransom amount.
[45] For these reasons, I do not find that the RAD erred in assessing in whether the cartel’s actions were motivated by the Applicants’ membership in the social group of business owners and, in turn, finding that their claims do not establish a nexus with a Convention ground.
B. IFA [46] The Applicants submit that the RAD’s assessment of the IFA is unreasonable on two grounds: 1) in its finding that the CJNG cartel lacks the motivation to pursue the Applicants in the proposed IFA and 2) in its finding that their relocation to the proposed IFA is reasonable in the Applicants’ circumstances.
[47] The Applicants submit that the RAD erred in finding that there is no evidence to support the cartel’s ongoing interest in and pursuit of the Applicants throughout Mexico. The Applicants note that the Associate Applicant Abad testified that members of the family have received phone calls from unknown numbers. They submit that the mere fact that Ulises was released following the ransom payment does not reasonably lead to the finding that the cartel is unmotivated to pursue the Applicants or that relocation is reasonable in the Applicants’ circumstances.
[48] The Respondent submits that the Applicants’ submissions on the IFA issue amount to a request that this Court reweigh the evidence. The Respondent submits that the RAD reasonably found that the Applicants proffered insufficient evidence to demonstrate that the CJNG had a continued interest in them or were still motivated to pursue them throughout Mexico. The Respondent contends that the RAD based this finding on a reasonable assessment of the evidence, which shows that the family business remains operational, that the Applicants are unaware of attempts by the cartel to contact any family members associated with the business, and that their family members have relocated within Mexico without being pursued. The Respondent submits that the RAD reasonably found that the Applicants failed to meet their onus to establish that they would face a risk in the IFA or that relocation would be unreasonable.
[49] I agree. I note that the Applicants’ submissions on these alleged errors are largely vague and unclear. What remains of their submissions appears to request that this Court reassess the evidence, which is not this Court’s role on review (Vavilov at para 125). Their allegation that the RAD unreasonably assessed the cartel’s motivation to pursue them and the reasonableness of their relocation to Merida is unsupported by references to the decision or clear evidence of a reviewable error. A review of the RAD’s reasons reveals a thorough and reasonable assessment of the facts that is responsive to the evidentiary record. The Applicants are unable to demonstrate that the CJNG attempted to contact or pursue them since they paid a portion of the ransom and Ulises was released. There is no evidence that their family members in Mexico, who are associated with the continuing business and relocated within Mexico, were pursued.
[50] In the absence of this evidence, the RAD’s reasons exhibit a clear line of analysis to arrive at the conclusion that the cartel lacks the motivation to pursue them in the IFA, supported by the factual and legal constrains (Vavilov at paras 99, 102). Given the minimal evidence provided, the RAD reasonably found that the Applicants failed to establish that relocation to Merida would be unreasonable, and provides clear and cogent reasons for this finding. For these reasons, I find that the RAD reasonably assessed the IFA issue in relation to the Applicants’ circumstances and its decision is therefore reasonable.
V. Conclusion
[51] This application for judicial review is dismissed. The RAD’s decision is reasonable in light of the Applicants’ circumstances and evidence. No questions for certification were raised, and I agree that none arise.
JUDGMENT in IMM-4441-22
THIS COURT’S JUDGMENT is that:
This application for judicial review is dismissed.
There is no question to certify.
“Shirzad A.”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-4441-22
STYLE OF CAUSE:
JOEL MARTINEZ ALTAMIRANO, EUSEBIA ROSALIA REYES LUNA, ABAD GILBERTO MORA REYES, AZUCENA MORA REYES AND GAEL MARTINEZ MORA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
March 29, 2023
JUDGMENT and reasons:
AHMED J.
DATED:
July 19, 2023
APPEARANCES:
Khatidja Moloo-Alam
For The Applicants
Asha Gafar
For The Respondent
SOLICITORS OF RECORD:
Green and Spiegel LLP Barristers and Solicitors Toronto, Ontario
For The Applicants
Attorney General of Canada Toronto, Ontario
For The Respondent
| cluster: CONCLUSION: The court concluded that the RAD's decision is reasonable in light of the Applicants' circumstances and evidence. The application for judicial review is therefore dismissed. | cluster: SUMMARY: **(1) Facts**
The Applicants, Joel Martinez Altamirano, his wife Azucena Mora Reyes, and their child Gael Martinez Mora, along with Azucena's mother Eusebia Rosalia Reyes Luna and brother Abad Gilberto Mora Reyes, are Mexican citizens who made claims for refugee protection in Canada. The Applicants claimed to be victims of the Jalisco New Generation Cartel (CJNG) in Mexico, alleging that they were extorted and threatened after failing to pay a ransom for the release of Eusebia's son Ulises, who was kidnapped by the cartel in 2019. The Applicants claimed that they feared persecution or harm in Mexico at the hands of the CJNG cartel if they returned.
The Refugee Protection Division (RPD) found that the Applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). The RPD determined that the Applicants had a viable internal flight alternative (IFA) in Merida, Mexico, and that relocation to Merida was reasonable in their circumstances.
The Refugee Appeal Division (RAD) upheld the RPD's decision, finding that the Applicants' claims did not establish a nexus with a Convention ground and that they had a viable IFA in Merida. The RAD found that the Applicants had failed to demonstrate that the CJNG had a continued interest in pursuing them or that relocation to Merida would be unreasonable.
**(2) Issue**
The issue before the court is whether the RAD's decision is reasonable. The Applicants submit that the RAD erred in finding that their claims do not establish a nexus with a Convention ground and that they have a viable IFA in Merida.
**(3) Rule**
The court applied the standard of review of reasonableness, as established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The court found that the RAD's decision was reasonable in light of the Applicants' circumstances and evidence.
**(4) Analysis**
The court analyzed the Applicants' submissions on the nexus with a Convention ground and the IFA issue. The Applicants argued that the RAD erred in finding insufficient evidence to establish that the cartel's actions were motivated by an enumerated Convention ground, particularly the ground of membership in a social group. However, the court found that the RAD's reasons were reasonable and that the Applicants' evidence did not establish a nexus between their claims and the Convention grounds.
The Applicants also argued that the RAD erred in finding that the CJNG cartel lacks the motivation to pursue them in the proposed IFA and that their relocation to the proposed IFA is reasonable in their circumstances. However, the court found that the RAD's reasons were reasonable and that the Applicants failed to establish that the CJNG had a continued interest in pursuing them or that relocation to Merida would be unreasonable.
**(5) Conclusion**
The court concluded that the RAD's decision is reasonable in light of the Applicants' circumstances and evidence. The application for judicial review is therefore dismissed. |
| cluster: CONCLUSION: Osipova v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-07-05
Neutral citation
2024 FC 1055
File numbers
IMM-9267-23
Decision Content
Date: 20240705
Docket: IMM-9267-23
Citation: 2024 FC 1055
Ottawa, Ontario, July 5, 2024
PRESENT: The Honourable Madam Justice Aylen
BETWEEN:
LIUDMILA OSIPOVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] The Applicant, a 73-year old mother and grandmother of Russian citizenship, seeks judicial review of a reconsideration decision dated May 26, 2023, made by a Senior Immigration Officer [Officer] at Immigration, Refugees and Citizenship Canada, refusing the Applicant’s application for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The Applicant asserts that the Officer’s decision was unreasonable on the basis that the Officer: (a) failed to conduct a proper assessment of hardship relating to a potential return to Russia based on the Applicant’s personal characteristics and her establishment in Canada; (b) erred in their assessment of the best interests of the child [BIOC] as they failed to be alert, alive and sensitive to the best interests of the Applicant’s grandchild; and (c) failed to give proper consideration to the evidence provided by the Applicant with respect to adverse country conditions in Russia and the hardship she would face in her home country.
[3] The sole issue for determination by this Court is whether the Officer’s decision was reasonable.
[4] The parties agree and I concur that the applicable standard of review of an H&C decision is reasonableness [see Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44 [Kanthasamy]]. When reviewing for reasonableness, the Court must take a “reasons first” approach and determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified [see Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 8, 59]. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker [see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adeniji-Adele v Canada (Citizenship and Immigration), 2020 FC 418 at para 11].
[5] Subsection 25(1) of the IRPA gives the Minister discretion to exempt foreign nationals from the ordinary requirements of that statute and grant permanent resident status in Canada if the Minister is of the opinion that such relief is justified by H&C considerations. An H&C determination under subsection 25(1) of the IRPA is a global one, where all the relevant considerations are to be weighed cumulatively in order to determine if relief is justified in the circumstances. Relief is considered justified if the circumstances would excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another [see Kanthasamy, supra at paras 13, 28; Caleb v Canada (Citizenship and Immigration), 2020 FC 1018 at para 10].
[6] While the Applicant has asserted a number of grounds of review, I am satisfied that the Officer’s BIOC analysis was sufficiently flawed so as to render their decision unreasonable.
[7] Subsection 25(1) of the IRPA mandates that officers consider the BIOC. In Kanthasamy, the Supreme Court of Canada states the following with respect to the BIOC:
[35] The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 20. It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.
[…]
[39] A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered: Baker, at para. 75. This means that decision-makers must do more than simply state that the interests of a child have been taken into account: Hawthorne, at para. 32. Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 (CanLII), [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165 (CanLII), 323 F.T.R. 181, at paras. 9-12.
[40] Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81. […]
[8] The BIOC includes “such matters as children’s rights, needs, and best interests; maintaining connections between family members,” among other factors [see Kanthasamy, supra at para 34 citing Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), [2013] 2 SCR 559 at para 41]. Although there is no “specific formula” for assessing the BIOC factor, the test above, as articulated in Kanthasamy, must be met [see Motrichko v Canada (Citizenship and Immigration), 2017 FC 516 at para 22 [Motrichko]].
[9] The issue, therefore, is whether the interests of the Applicant’s granddaughter were “well identified and defined” by the Officer and examined “with a great deal of attention,” in light of all the evidence. If not, then the Officer’s decision is unreasonable.
[10] The evidence before the Officer was that the Applicant had been residing with her daughter and her son-in-law in Canada as a visitor since 2017. When the Applicant submitted her H&C application, her daughter was pregnant. The Applicant updated her application following the birth of her granddaughter in February of 2022; evidence was provided that the Applicant is involved in the upbringing of her infant granddaughter and will take on an increasingly important role in caring for her when her daughter’s maternity leave ends and both parents are working on a full-time basis.
[11] The Officer’s reasons for decision related to the best interests of the Applicant’s granddaughter provide, in their entirety, as follows:
A factor to be considered in assessing a child’s welfare is the level of dependency between the child and the applicant. With regard to this factor, the applicant submits that during the time she has been present in Canada, she has assisted in the care and upbringing of Sophie. Undoubtedly, the applicant has forged an emotional attachment to her.
Notwithstanding, Sophie does not appear to be wholly dependent on the applicant. It would be reasonable to expect that Sophie will continue to live in Canada with her parents as her primary caregivers. While I do not doubt that the interaction and support the applicant has provided to Sophie is of value, there is insufficient objective evidence to establish that the applicant’s return to Russia would compromise Sophie’s best interests.
[Emphasis added.]
[12] I find that the Officer’s highly generalized BIOC assessment renders the Officer’s decision unreasonable [see Motrichko, supra at para 26]. It was incumbent on the Officer to properly identify and define the granddaughter’s needs and to examine them “with a great deal of attention,” as Kanthasamy requires. The Officer’s BIOC analysis falls short of this standard. As in Chamas v Canada (Citizenship and Immigration), 2021 FC 1352 [Chamas], the Officer never identified what was in the child’s best interest, or how the granddaughter would be affected by the Applicant’s departure. The Officer merely acknowledged that the Applicant has been involved in her granddaughter’s care and upbringing, and that “the [A]pplicant has forged an emotional attachment to her,” without addressing the granddaughter’s attachment to the Applicant. The Officer fails to consider what needs the granddaughter might have, or how the Applicant’s return to Russia might impact the granddaughter. In particular, the emotional and practical hardships the Applicant’s granddaughter would face if the Applicant is forced to leave the country are not addressed in detail, despite there being evidence of hardship on the record [see Motrichko, supra at para 27]. For example, the Applicant’s daughter provided a letter stating that she would be returning to work after her maternity leave and that she needed the Applicant’s help to raise and care for the child. This is a very practical form of support that the Applicant cannot provide from Russia, yet the Officer fails to grapple with this evidence and address whether it is in the best interests of the granddaughter for the Applicant to provide this care.
[13] Further, the Officer failed to properly apply the test set out in Kanthasamy by placing undue emphasis on the degree to which the granddaughter depends on the Applicant. The Officer concluded that the granddaughter “does not appear to be wholly dependent on the [A]pplicant,” and that she would “continue to live in Canada with her parents as her primary caregivers.” As Chamas and Motrichko make clear, the fact that an applicant is not a primary caregiver is not determinative. In Motrichko, this Court noted that “the analysis the Officer was called upon to undertake was not whether the grandchildren would manage or survive in the absence of their grandmother but how they would be impacted, both practically and emotionally, by the departure of the [a]pplicant in the particular circumstances of the case” [see Motrichko, supra at para 27]. The same is true here. However, much like in Chamas, the Officer stopped asking what, if any, impact the Applicant’s departure would have on her granddaughter after determining that the Applicant was not her primary caregiver [see Chamas, supra at para 42].
[14] The Respondent asserts that while the Applicant and her daughter provided letters stating that the daughter will be returning to work upon completion of her maternity leave, the Applicant failed to provide sufficient evidence to demonstrate that her removal would undermine the granddaughter’s best interests, such as the inability to seek alternative childcare arrangements or the degree of the Applicant’s involvement in her granddaughter’s day-to-day needs. The Respondent asserts that absent this evidence, it was open to the Officer to find that separation between the Applicant and her grandchild alone is insufficient to warrant H&C relief. However, the Respondent’s explanation constitutes an impermissible attempt to supplement the reasons of the Officer [see Ehigiator v Canada (Citizenship and Immigration), 2023 FC 308 at para 53]. Although it was open to the Officer to conclude that the Applicant’s evidence was insufficient because she failed to demonstrate an inability to seek alternative childcare arrangements or the degree of involvement she has in her granddaughter’s day-to-day needs, the Officer did not provide any such justification for their decision.
[15] Accordingly, I find that the Officer’s BIOC analysis was unreasonable, which rendered the decision as a whole unreasonable. As such, I need not go on to consider the other grounds of review raised by the Applicant.
[16] The application for judicial review is allowed, the decision is set aside and the matter is remitted to a different officer for redetermination. Prior to the redetermination, the Applicant shall be given an opportunity to provide updated submissions and documentation in support of her application.
[17] Neither party proposed a question for certification and I agree that none arises.
JUDGMENT in IMM-9267-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is allowed.
The decision of the Senior Immigration Officer dated May 26, 2023, refusing the Applicant’s application for permanent residence based on humanitarian and compassionate grounds is set aside and the matter is remitted back to a different officer for redetermination. Prior to the redetermination, the Applicant shall be given an opportunity to provide updated submissions and documentation in support of her application.
The parties proposed no question for certification and none arises.
“Mandy Aylen”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-9267-23
STYLE OF CAUSE:
LIUDMILA OSIPOVA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
TORONTO, ONTARIO
DATE OF HEARING:
JULY 4, 2024
JUDGMENT and reasons:
AyLEN J.
DATED:
JULY 5, 2024
APPEARANCES:
John Yoon
For The Applicant
Eli Lo Re
For The Respondent
SOLICITORS OF RECORD:
Dov Maierovitz Barrister and Solicitor Toronto, Ontario
For The Applicant
Attorney General of Canada Toronto, Ontario
For The Respondent
| cluster: CONCLUSION: The court allowed the application for judicial review, set aside the decision, and remitted the matter back to a different officer for redetermination. Prior to the redetermination, the person concerned would be given an opportunity to provide updated submissions and documentation in support of her application. The court found that the Officer's BIOC analysis was unreasonable, which rendered the decision as a whole unreasonable, and that the person concerned had raised sufficient grounds for judicial review. | cluster: ISSUES: The sole issue before the court was whether the Officer's decision was reasonable. The person concerned argued that the Officer's decision was unreasonable due to several factors, including a failure to conduct a proper assessment of hardship, an error in assessing the best interests of the child, and a failure to give proper consideration to adverse country conditions in Russia. |
* Loss: [MultipleNegativesRankingLoss](https://sbert.net/docs/package_reference/sentence_transformer/losses.html#multiplenegativesrankingloss) with these parameters:
```json
{
"scale": 20.0,
"similarity_fct": "cos_sim"
}
```
### Training Hyperparameters
#### Non-Default Hyperparameters
- `eval_strategy`: steps
- `per_device_train_batch_size`: 4
- `per_device_eval_batch_size`: 4
- `learning_rate`: 2e-05
- `num_train_epochs`: 1
- `warmup_ratio`: 0.1
- `fp16`: True
- `batch_sampler`: no_duplicates
#### All Hyperparameters
Click to expand
- `overwrite_output_dir`: False
- `do_predict`: False
- `eval_strategy`: steps
- `prediction_loss_only`: True
- `per_device_train_batch_size`: 4
- `per_device_eval_batch_size`: 4
- `per_gpu_train_batch_size`: None
- `per_gpu_eval_batch_size`: None
- `gradient_accumulation_steps`: 1
- `eval_accumulation_steps`: None
- `torch_empty_cache_steps`: None
- `learning_rate`: 2e-05
- `weight_decay`: 0.0
- `adam_beta1`: 0.9
- `adam_beta2`: 0.999
- `adam_epsilon`: 1e-08
- `max_grad_norm`: 1.0
- `num_train_epochs`: 1
- `max_steps`: -1
- `lr_scheduler_type`: linear
- `lr_scheduler_kwargs`: {}
- `warmup_ratio`: 0.1
- `warmup_steps`: 0
- `log_level`: passive
- `log_level_replica`: warning
- `log_on_each_node`: True
- `logging_nan_inf_filter`: True
- `save_safetensors`: True
- `save_on_each_node`: False
- `save_only_model`: False
- `restore_callback_states_from_checkpoint`: False
- `no_cuda`: False
- `use_cpu`: False
- `use_mps_device`: False
- `seed`: 42
- `data_seed`: None
- `jit_mode_eval`: False
- `use_ipex`: False
- `bf16`: False
- `fp16`: True
- `fp16_opt_level`: O1
- `half_precision_backend`: auto
- `bf16_full_eval`: False
- `fp16_full_eval`: False
- `tf32`: None
- `local_rank`: 0
- `ddp_backend`: None
- `tpu_num_cores`: None
- `tpu_metrics_debug`: False
- `debug`: []
- `dataloader_drop_last`: False
- `dataloader_num_workers`: 0
- `dataloader_prefetch_factor`: None
- `past_index`: -1
- `disable_tqdm`: False
- `remove_unused_columns`: True
- `label_names`: None
- `load_best_model_at_end`: False
- `ignore_data_skip`: False
- `fsdp`: []
- `fsdp_min_num_params`: 0
- `fsdp_config`: {'min_num_params': 0, 'xla': False, 'xla_fsdp_v2': False, 'xla_fsdp_grad_ckpt': False}
- `fsdp_transformer_layer_cls_to_wrap`: None
- `accelerator_config`: {'split_batches': False, 'dispatch_batches': None, 'even_batches': True, 'use_seedable_sampler': True, 'non_blocking': False, 'gradient_accumulation_kwargs': None}
- `deepspeed`: None
- `label_smoothing_factor`: 0.0
- `optim`: adamw_torch
- `optim_args`: None
- `adafactor`: False
- `group_by_length`: False
- `length_column_name`: length
- `ddp_find_unused_parameters`: None
- `ddp_bucket_cap_mb`: None
- `ddp_broadcast_buffers`: False
- `dataloader_pin_memory`: True
- `dataloader_persistent_workers`: False
- `skip_memory_metrics`: True
- `use_legacy_prediction_loop`: False
- `push_to_hub`: False
- `resume_from_checkpoint`: None
- `hub_model_id`: None
- `hub_strategy`: every_save
- `hub_private_repo`: False
- `hub_always_push`: False
- `gradient_checkpointing`: False
- `gradient_checkpointing_kwargs`: None
- `include_inputs_for_metrics`: False
- `eval_do_concat_batches`: True
- `fp16_backend`: auto
- `push_to_hub_model_id`: None
- `push_to_hub_organization`: None
- `mp_parameters`:
- `auto_find_batch_size`: False
- `full_determinism`: False
- `torchdynamo`: None
- `ray_scope`: last
- `ddp_timeout`: 1800
- `torch_compile`: False
- `torch_compile_backend`: None
- `torch_compile_mode`: None
- `dispatch_batches`: None
- `split_batches`: None
- `include_tokens_per_second`: False
- `include_num_input_tokens_seen`: False
- `neftune_noise_alpha`: None
- `optim_target_modules`: None
- `batch_eval_metrics`: False
- `eval_on_start`: False
- `use_liger_kernel`: False
- `eval_use_gather_object`: False
- `batch_sampler`: no_duplicates
- `multi_dataset_batch_sampler`: proportional