Model: simonosgoode/nomic_embed_fine_tune_law_v3
Author: simonosgoode
Pipeline: sentence-similarity
Library: sentence-transformers
Tags: sentence-transformers, safetensors, nomic_bert, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:12750, loss:MultipleNegativesRankingLoss, custom_code, arxiv:1908.10084, arxiv:1705.00652, base_model:nomic-ai/nomic-embed-text-v1.5, base_model:finetune:nomic-ai/nomic-embed-text-v1.5, text-embeddings-inference, endpoints_compatible, region:us
Base models (finetune): id: nomic-ai/nomic-embed-text-v1.5
Card metadata: tags: sentence-transformers, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:12750, loss:MultipleNegativesRankingLoss
base_model: nomic-ai/nomic-embed-text-v1.5
widget: source_sentence: cluster: SUMMARY:  Eli Lilly Canada Inc. v. Novopharm Limited
Court (s) Database
Federal Court Decisions
Date
2007-10-31
Neutral citation
2007 FC 1126
File numbers
T-1048-07
Decision Content
Date: 20071031
Docket: T-1048-07
Citation: 2007 FC 1126
Toronto, Ontario, October 31, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
ELI LILLY CANADA INC., ELI LILLY AND COMPANY,
ELI LILLY COMPANY LIMITED and ELI LILLY SA
Plaintiffs
(Defendants by Counterclaim)
and
NOVOPHARM LIMITED
Defendant
(Plaintiff by Counterclaim)
REASONS FOR ORDER AND ORDER
[1] Novopharm appeals the Order of Prothonotary Tabib dated September 25, 2007 granting the plaintiffs’ motion for bifurcation of the issues of quantum from those of validity and infringement of the patent in suit pursuant to Rule 107 of the Federal Courts Rules, 1998, SOR/98-106. It is to be noted that Prothonotary Tabib is the Case Manager in this matter.
[2] All the principles applicable to this appeal are well known. As the matter before Prothonotary Tabib did not involve a question vital to the final issue of the case, the Court should not intervene on appeal unless her decision was clearly wrong, “in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of the facts” (Z.I. Pompey Industrie v. ECU-Line N.V. [2003], 1 S.C.R. 450 at para. 461), Merck and Co. v. Apotex Inc. [2003], 30 C.P.R (4th) 40 (FCA); [2003] F.C.J. No. 1925 at para. 19). The principles or conditions for the making of an order pursuant to Rule 107 are also well established (see for example Apotex Inc. v. Bristol-Myers Squibb Co. 2003 F.C.A. 263, (2003) 26 C.P.R. (4th) 129 at para. 7); Illva Saronno S.p.A. v. Privilegiata Fabbrica Maraschino "Excelsior" (T.D.), [1998] F.C.J. No. 1500; Illva Saronno S.p.A. v. Privilegiata Fabbrica Maraschino, [2000] F.C.J. No. 170 at para 8; Merck & Co. et al. v. Brantford Chemicals Inc. [2004] F.C.J. No. 1704, 35 C.P.R. (4th) 4, aff’d [2005] F.C.J. No. 837, 39 C.P.R (4th) 524 (F.C.A.); Apotex Inc. v. Merck & Co. [2004] F.C.J. No. 1372 at para. 3). It is trite law that the applicant bears the burden of convincing the Court on a balance of probabilities that in light of the evidence and all of the circumstances of the case (including the nature of the claims, the conduct of the litigation, the issues and remedies sought), bifurcation or severance is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits.
[3] That being said, having carefully considered all the arguments put forth by the parties on this appeal, the Court is not persuaded that Prothonotary Tabib made any error that warrants the Court’s intervention.
[4] As mentioned at the hearing, given that time is of the essence here, the Court will not comment on each and every issue raised by Novopharm (such issues are summarised at paragraph 2 of the written representations). However, considering the importance given to the following issues at the hearing, it is worth noting specifically that the Court cannot agree with Novopharm that Prothonotary Tabib implicitly applied or assumed the existence of a presumption in favour of bifurcation in patent infringement cases, which had the effect of actually reversing the burden of proof so as to place it on the shoulders of Novopharm. There was evidence before Prothonotary Tabib dealing with bifurcation of quantum issues in cases involving patent infringement in the last fifteen years (such as the affidavits of Nancy Gallinger and of Alisha Meredith). Prothonotary Tabib expressly refers to Apotex Inc. v. Bristol-Myers Squibb Co. above; in that case, the Federal Court of Appeal agreed that “when an experienced specialist bar like the intellectual property bar commonly consents to the making of a bifurcation order, it is open to a judge to infer that, in general, such an order may well advance the just and expeditious resolution of claims”.
[5] It is also absolutely clear from the decision that this was only one of many factors Prothonotary Tabib considered before making her order. Among many other things, she was satisfied based on the evidence before her, the pleadings, her knowledge of the history of the proceeding and the issues it involved, that not only would bifurcation likely have the advantage of speeding up the determination of the liability issues (which at this stage also involve novel questions of law particularly in respect of the section 8 counterclaim), but that bifurcation would also more likely than not avoid at least one side of the quantification exercise whatever the result of the trial on liability issues. (page 4 last sentence and page 6 and 7)
[6] Evidently, the Prothonotary was satisfied that she did not require more specific evidence in respect of the number of days of discoveries or an exact quantification of the time and expenses that would be saved in order to determine whether this would necessarily result in a saving of time and money for the Court and the parties.
[7] Novopharm says that this constitute an error of law as Prothonotary Tabib failed to heed the evidentiary requirements set out by the Federal Court of Appeal in Realsearch Inc. v. Valon Kone Brunette, 31 C.P.R. (4th) 101 (F.C.A.), [2004] 2 F.C.R. 514.
[8] Like Prothonotary Tabib, the Court does not believe that Realsearch establishes a new condition or standard for the making of an order under Rule 107. As any party who has a burden of proof to meet, the applicant seeking such an order must provide sufficient evidence to enable the Court to come to a conclusion on the matter before it. The fact that there was no evidence dealing with the specific saving of time and money that would result from the bifurcation in the case before the Court in Realsearch was worth noting and was particularly significant because the bifurcation sought in that case was in respect of a question of law (claims construction). Such request was an unusual and a somewhat novel use of bifurcation pursuant to Rule 107. In such a case, the Court could not rely on experience or on an inference based on a consistent practice in respect of the bifurcation of quantum issues in similar cases or on knowledge acquired while case managing the matter. The situation is quite different here.
[9] It is clear from her order that Prothonotary Tabib knew perfectly well that the applicant had to satisfy her on a balance of probabilities. She was fully aware of all the arguments raised by Novopharm in respect of the quality (or rather lack thereof) of the evidence before her. Still, she concluded on page 9 that on the whole, she was satisfied that she could reach a conclusion that severance is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits.
[10] In fact, even if Novopharm had convinced that the Court that it should exercise its discretion de novo, the Court would ultimately have reached the same conclusion as Prothonotary Tabib.
ORDER
THIS COURT ORDERS that:
The appeal is dismissed with costs.
“Johanne Gauthier”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1048-07
STYLE OF CAUSE: ELI LILLY CANADA INC. ET AL
Plaintiffs
and
NOVOPHARM LIMITED Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: 29-OCT-2007
REASONS FOR : Gauthier, J.
DATED: 31-OCT-2007
APPEARANCES:
MR. ANTHONY G. CREBER
FOR THE PLAINTIFFS
MR. JONATHAN STAINSBY
MR. ANDY RADHAKANT
MR. NEIL FINEBERG
FOR THE DEFENDANT
SOLICITORS OF RECORD:
GOWLING LAFLEUR HENDERSON LLP
Barristers & Solicitors
Ottawa, Ontario
FOR THE PLAINTIFFS
HEENAN BLAIKIE LLP
Lawyers
Toronto, Ontario
FOR THE DEFENDANT

sentences: cluster: ANALYSIS:  In analyzing the issue of whether the applicants were denied the right to counsel, the court carefully reviewed the transcript of the hearing and found that it did not support the applicants' allegations. The court noted that the applicants had been informed that their original lawyer, Philip U. Okpala, would not be attending the hearing and that they had been given the opportunity to request an adjournment, which was denied. The court also found that the Board Member had not pressured the applicants to proceed without counsel, but rather had given them the opportunity to decide whether to proceed with or without counsel. In analyzing the issue of whether the Board made capricious findings of fact, the court determined that the Board's conclusion that the police were unable to locate the perpetrator of the ticket incident and that the principal claimant did not pursue the matter further was reasonable and not made arbitrarily or irrationally., cluster: SUMMARY:  **(1) Facts**

The case before the court involves a patent dispute between Eli Lilly Canada Inc. and Novopharm Limited. Eli Lilly Canada Inc. had sought a motion to bifurcate the issues of quantum from those of validity and infringement of the patent in suit. Prothonotary Tabib granted the motion, and Novopharm Limited appealed the decision. The parties involved in the case had been litigating for some time, and the court was considering the appropriateness of bifurcation to speed up the determination of the liability issues and to avoid quantification exercises.

**(2) Issue**

The issue before the court was whether Prothonotary Tabib erred in granting the motion to bifurcate the issues of quantum from those of validity and infringement of the patent in suit. Novopharm Limited argued that Prothonotary Tabib had made an error of law in granting the motion without sufficient evidence to support the decision. Specifically, Novopharm Limited argued that Prothonotary Tabib had failed to heed the evidentiary requirements set out by the Federal Court of Appeal in Realsearch Inc. v. Valon Kone Brunette.

**(3) Rule**

The court applied the principles established in previous cases, including Z.I. Pompey Industrie v. ECU-Line N.V. and Merck and Co. v. Apotex Inc. The court held that the applicant bears the burden of convincing the court on a balance of probabilities that bifurcation or severance is more likely than not to result in the just, expeditious, and least expensive determination of the proceeding on its merits.

**(4) Analysis**

The court analyzed the decision of Prothonotary Tabib and found that she had considered multiple factors before granting the motion to bifurcate. The court noted that Prothonotary Tabib had considered the evidence before her, the pleadings, her knowledge of the history of the proceeding, and the issues it involved. The court also found that Prothonotary Tabib had not implicitly applied or assumed the existence of a presumption in favor of bifurcation in patent infringement cases. The court concluded that Prothonotary Tabib had not made an error of law in granting the motion to bifurcate.

**(5) Conclusion**

The court dismissed Novopharm Limited's appeal, finding that Prothonotary Tabib had not erred in granting the motion to bifurcate the issues of quantum from those of validity and infringement of the patent in suit. The court held that Prothonotary Tabib had considered the necessary factors and had not made an error of law in granting the motion. The court also noted that even if it had exercised its discretion de novo, it would have reached the same conclusion as Prothonotary Tabib., cluster: FACTS:  The case before the court involves a patent dispute between Eli Lilly Canada Inc. and Novopharm Limited. Eli Lilly Canada Inc. had sought a motion to bifurcate the issues of quantum from those of validity and infringement of the patent in suit. Prothonotary Tabib granted the motion, and Novopharm Limited appealed the decision. The parties involved in the case had been litigating for some time, and the court was considering the appropriateness of bifurcation to speed up the determination of the liability issues and to avoid quantification exercises., source_sentence: cluster: SUMMARY:  Mennes v. McClung
Court (s) Database
Federal Court Decisions
Date
2001-12-07
Neutral citation
2001 FCT 1349
File numbers
T-2351-00
Notes
Digest
Decision Content
Date: 20011207
Docket: T-2351-00
Neutral Citation: 2001 FCT 1349
BETWEEN:
EMILE MENNES
Applicant
and
LUCIE McCLUNG, OLE INGSTRUP, MICHEL ROY, KAREN WISEMAN,
LIZ ESHKROD, THE COMMISSIONER OF CORRECTIONS,
THE CORECTIONAL SERVICE OF CANADA,
THE NATIONAL LIBRARY OF CANADA,
THE MINISTER OF NATIONAL HEALTH AND WELFARE
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision rendered by the Acting Assistant Commissioner Karen J. Wiseman, Correctional Service of Canada ("CSC") of Inmate Grievance Presentation ("Third level"), Reference No. V4000A004355 under subsection 4(g) and sections 90 and 91 of the Corrections and Conditional Release Act (the "Act").
FACTS
[2] The applicant is an inmate at Warkworth Institution in Campbellford, Ontario.
[3] The applicant has been working as a grievance clerk for Warkworth at the office of the Institutional Grievance Co-ordinator for approximately two and a half (2½) years.
[4] The applicant is aware of the policy and the procedure governing the grievance process at Warkworth Institution.
[5] On February 18, 2000, the applicant began a group complaint with fellow inmate Helmut Buxbaum.
[6] The complaint was entered in regards to the state of some of the laundered bed linens that had been returned to the applicant.
[7] The applicant has described the condition of the bed linens to be "absolutely disgusting", with "nose pickings baked along one edge", "permanently stained with urine and other bodily emissions" (see page 6, paragraph 12 of the affidavit of Emile Mennes, applicant's record).
[8] The applicant's original complaint was denied and consequently, the applicant appealed the decision through the First level grievance (Institutional Warden), the Second level grievance (Regional) and subsequently the Third (and final) level grievance (National). The applicant's complaint was denied at each level.
[9] In regards to the content of the applicant's Third level grievance, the applicant sought to be issued new bed linens and in addition, he requested that the unit laundry room be converted into a full scale laundromat so that the inmates at Warkworth could have the privilege of laundering their own bed linens.
[10] On September 8, 2000, the Acting Assistant Commissioner Karen J. Wiseman denied the applicant's Third level appeal with the provision of reasons on both grounds.
PERTINENT LEGISLATION
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
[...]
(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent :
[...]
(g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;
90. There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).
90. Est établie, conformément aux règlements d'application de l'alinéa 96u), une procédure de règlement juste et expéditif des griefs des délinquants sur des questions relevant du commissaire.
91. Every offender shall have complete access to the offender grievance procedure without negative consequences.
91. Tout délinquant doit, sans crainte de représailles, avoir libre accès à la procédure de règlement des griefs.
ISSUES
[11] 1. Did CSC make a reviewable error in denying the applicant's Third level appeal?
2. Is the determination of the outcome of the applicant's grievance at the Third level grievance appropriately delegated by the Commissioner of Corrections to the Acting Assistant Commissioner Karen J. Wiseman?
ANALYSIS
1. Did CSC make a reviewable error in denying the applicant's Third level appeal?
[12] No, the CSC did not make a reviewable error in denying the applicant's Third level appeal.
STANDARD OF REVIEW
[13] In Tehrankari v. Canada (Correctional Service), [2000] F.C.J. 495, Lemieux J. recently defined the applicable standard of review of a decision by the Federal Commissioner of the Correctional Service when applying the grievance procedure contained in Section 90 of the Act. He held:
[para 33] A word needs to be said about the standard of review applicable in this case keeping in mind the type of decision made and the decision-maker (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In Baker, supra, L'Heureux-Dubé J. pointed out it was held in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, a decision which related to the determination of a question of law in that case, (the interpretation of the exclusion provisions in section 2 of the Immigration Act as they relate to the definition of Convention refugee) made by the Immigration and Refugee Board, was subject to a standard of review of correctness but on other questions, the standard of review varied.
[...]
[para 44] To conclude on this point, I would apply a correctness standard if the question involved is the proper interpretation of section 24 of the Act; however, I would apply the standard of reasonableness simpliciter if the question involved is either the application of proper legal principles to the facts or whether the refusal decision to correct information on the offender's file was proper. The patently unreasonable standard applies to pure findings of fact. (Subsection 18.2(4) of the Federal Court Act, R.S.C. 1985, c. F-7.)
[14] The decision to deny the applicant's Third level appeal was based on pure findings of fact and therefore, the appropriate standard of review is patently unreasonable.
[15] The applicant's arguments presented on his Third level appeal were similar to the ones previously put forward at the earlier levels with the additional argument of a laundromat to be accessible to the inmates at Warkworth.
[16] Subsection 82(a) of the Regulations applies on an appeal of a complaint or a grievance. The provision reads as follows:
82. In reviewing an offender's complaint or grievance, the person reviewing the complaint or grievance shall take into consideration
(a) any efforts made by staff members and the offender to resolve the complaint or grievance, and any recommendations resulting therefrom; [...]
82. Lors de l'examen de la plainte ou du grief, la personne chargée de cet examen doit tenir compte :
(a) des mesures prises par les agents et le délinquant pour régler la question sur laquelle porte la plainte ou le grief et des recommandations en découlant;
[17] In the present case, the "efforts made by staff members" resulted in an exchange of the soiled bed linens the applicant complained of in his grievance, yet he remains to date dissatisfied with his bed linens, pillow and mattress, but there is nothing that justify the Court to intervene.
2. Is the determination of the outcome of the applicant's grievance appropriately delegated by the Commissioner of Corrections to the Acting Assistant Commissioner Karen J. Wiseman?
[18] Yes, the determination of the outcome of the applicant's grievance was appropriately delegated by the Commissioner of Corrections to the Acting Assistant Commissioner Karen J. Wiseman.
[19] The decision of the applicant's Third level grievance was rendered by the Acting Assistant Commissioner Karen J. Wiseman. The applicant claims that subsections 80(2) and 80(3) of the Regulations state that the Commissioner of Corrections, Ms. Lucie McClung, should have been the one to hear his appeal and not the Acting Assistant Commissioner Karen J. Wiseman. The applicant relies upon subsections 80(2) and 80(3) of the Regulations and the long established rule of delegatus non potest delegare as a principle of interpretation or statutory construction.
[20] However, according to the respondent, at each level of the applicant's grievance process, his complaint was reviewed by the appropriate party designated under the Act and the Regulations. Sections 75-82 of the Regulations provide for the grievance process and there is clearly no requirement under the Act or the Regulations for the Commissioner of Corrections, to individually or directly review complaints at the Third level appeal or at any other level. In addition, it would be impractical for the Commissioner of Corrections to have to review all the grievances made by every inmate in the country, at each level of appeal.
[21] The resolution to this issue is found in several sources: section 97 of the Act, section 98 of the Act, Commissioner's Directive Number 081 dated June 22, 1998 entitled Offender Complaints and Grievances (CD 081), the inclusion printed at the bottom of the decision of the Commissioner (Third level grievance - National) and lastly subsection 2(2) of the Act. They will be treated below in this order. It is the interaction between these multiple sources that allowed for the delegation of authority to the Acting Assistant Commissioner Karen J. Wiseman by the Commissioner to pronounce on the final stage of the grievance process.
[22] Section 97 of the Act pertains to the Commissioner having the authority to issue Rules:
97. Subject to this Part and the regulations, the Commissioner may make rules
(a) for the management of the Service;
(b) for the matters described in section 4; and
(c) generally for carrying out the purposes and provisions of this Part and the regulations.
97. Sous réserve de la présente partie et de ses règlements, le commissaire peut établir des règles concernant :
a) la gestion du Service;
b) les questions énumérées à l'article 4;
c) toute autre mesure d'application de cette partie et des règlements.
[23] Section 98 of the Act allows for the creation of Commissioner's Directives:
98. (1) The Commissioner may designate as Commissioner's Directives any or all rules made under section 97.
(2) The Commissioner's Directives shall be accessible to offenders, staff members and the public.
98. (1) Les règles établies en application de l'article 97 peuvent faire l'objet de directives du commissaire.
(2) Les directives doivent être accessibles et peuvent être consultées par les délinquants, les agents et le public.
[24] Commissioner's Directive entitled Offender Complaints and Grievances (CD 081) reads at paragraphs 19 and 20:
19. An offender, who is not satisfied with the decision from the Regional Deputy Commissioner, may submit a grievance to the Assistant Commissioner, Corporate Development, through the Institutional Grievance Coordinator or through the District Office. A grievance must normally be submitted within ten working days of receipt of the reply at the regional level. An offender may also grieve at this level in cases where action was not taken in accordance with the Regional Deputy Commissioner's decision.
20. The decision of the Assistant Commissioner, Corporate Development constitutes the final stage of the Offender Complaints and Grievance process.
19. Le délinquant qui est insatisfait de la décision du sous-commissaire régional peut soumettre un grief au commissaire adjoint, Développement organisationnel, par l'entremise du coordonnateur des griefs de l'établissement ou du bureau de district. Le grief doit normalement être présenté dans les dix jours ouvrables suivant la réception de la réponse au niveau régional. Un délinquant peut aussi présenter un grief à ce niveau lorsque les mesures prescrites par le sous-commissaire régional n'ont pas été mises en application.
20. La décision du commissaire adjoint, Développement organisationnel, constitue l'étape finale du processus de règlement des plaintes et des griefs des délinquants.
[25] The next source is the inclusion printed in the decision of the Commissioner (Third level grievance - National), found at the bottom of the page above the signature, and which reads as follows:
The Commissioner of the Correctional Service of Canada has authorized the Assistant Commissioner, Corporate Development (ACCD), Michel Roy, to exercise the powers, duties, and functions given to him under Section 80(2) of the Corrections and Conditional Release Regulations, 1992. This authorization remains in effect until such time as it is withdrawn in writing.
Accordingly, this decision by the ACCD is to be considered the conclusion of the inmate grievance system.
Le Commissaire du Service correctionnel du Canada a autorisé le Commissaire adjoint, Développement organisationnel, Michel Roy, à exercer les pouvoirs et les fonctions qui lui sont conférés en vertu du paragraphe 80(2) du Règlement sur le système correctionnel et la mise en liberté sous condition (1992). Cette autorisation demeure en vigueur jusqu'à ce qu'elle soit révoquée par écrit.
Par conséquent, la décision du Commissaire adjoint, Développement organisationnel constitue l'étape finale du processus de règlement des plaintes et griefs des détenus.
[26] However, in order to answer the specific issue in question that being, can Assistant Commissioner Michel Roy delegate his authority to an Acting Assistant Commissioner for the purpose of rendering a final decision in the grievance process? The ultimate solution to this question is found in subsection 2(2) of the Act. The French version of this provision is more instructive than the English version and therefore has been reproduced first, followed by the English version:
Délégation
(2) Sauf dans les cas visés à l'alinéa 96b) et sous réserve de la présente partie, les pouvoirs et fonctions conférés par celle-ci au commissaire et au directeur du pénitencier sont, en cas d'absence, d'empêchement ou de vacance de leur poste, respectivement exercés par le suppléant ou par la personne qui est alors responsable du pénitencier.
Exercise of powers, etc.
(2) Except as otherwise provided by this Part or by regulations made under paragraph 96(b),
(a) powers, duties and functions that this Part assigns to the Commissioner may only be exercised or performed by the Commissioner or, where Commissioner is absent or incapacitated or where the office is vacant, by the person acting in the place of the Commissioner; and
(b) powers, duties and functions that this Part assigns to the institutional head may only be exercised or performed by the institutional head or, where institutional head is absent or incapacitated or where the office is vacant, by the person who, at the relevant time, is in charge of the penitentiary.
[27] In summary, the Acting Assistant Commissioner Karen Wiseman held the proper authority by virtue of the aforementioned sources in rendering her final decision of the grievance process under subsections 80(2) and 80(3) of the Act.
[28] It is my opinion that there is no reason warranting the intervention of this Court as the decision of the Acting Assistant Commissioner does not reveal any reviewable errors.
[29] Therefore, this application for judicial review should be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 7, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2351-00
STYLE OF CAUSE: Emile Mennes - and - Lucie McClung and others
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 28, 2001 REASONS FOR ORDER: the Honourable Mr. Justice Blais DATED:, December 7, 2001
APPEARANCES:
Mr. Emile MennesFOR APPLICANT
Ms. Sogie SabetaFOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Emile Mennes FOR APPLICANT Campbellford, Ontario
Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada

sentences: cluster: SUMMARY:  **(1) Facts**

The person concerned, an inmate at Warkworth Institution in Campbellford, Ontario, has been working as a grievance clerk for approximately two and a half years. He initiated a group complaint with fellow inmate Helmut Buxbaum regarding the state of laundered bed linens, which he described as "absolutely disgusting" with stains and other bodily emissions. The complaint was denied at each level of the grievance process, including the Third level appeal, which was decided by the Acting Assistant Commissioner Karen J. Wiseman. The person concerned sought to have new bed linens issued and the unit laundry room converted into a full-scale laundromat, allowing inmates to launder their own bed linens.

**(2) Issue**

The issues before the court were: (1) whether the Correctional Service of Canada (CSC) made a reviewable error in denying the person concerned's Third level appeal, and (2) whether the determination of the outcome of the person concerned's grievance was appropriately delegated by the Commissioner of Corrections to the Acting Assistant Commissioner Karen J. Wiseman.

**(3) Rule**

The court applied the standard of review of patently unreasonable to the decision of the Acting Assistant Commissioner. The court held that the CSC did not make a reviewable error in denying the person concerned's Third level appeal. The decision was based on pure findings of fact, and the CSC had considered the efforts made by staff members to resolve the complaint, including exchanging the soiled bed linens. The court also held that the determination of the outcome of the person concerned's grievance was appropriately delegated by the Commissioner of Corrections to the Acting Assistant Commissioner.

**(4) Analysis**

The court analyzed the standard of review applicable to the decision of the Acting Assistant Commissioner, citing Tehrankari v. Canada (Correctional Service), [2000] F.C.J. 495, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The court applied the standard of patently unreasonable to the decision, as it was based on pure findings of fact. The court also examined the CSC's decision-making process, citing subsection 82(a) of the Regulations, which requires consideration of efforts made by staff members to resolve the complaint. The court found that the CSC had considered these efforts and had not made a reviewable error in denying the person concerned's Third level appeal.

Regarding the delegation of authority, the court examined the relevant legislation, including sections 75-82 of the Regulations, and Commissioner's Directive Number 081. The court held that the Acting Assistant Commissioner had the proper authority to render the final decision in the grievance process, citing subsection 2(2) of the Act, which allows for delegation of powers and functions in cases of absence, incapacitation, or vacancy.

**(5) Conclusion**

The court concluded that the CSC did not make a reviewable error in denying the person concerned's Third level appeal, and that the determination of the outcome of the grievance was appropriately delegated by the Commissioner of Corrections to the Acting Assistant Commissioner. The court dismissed the application for judicial review, finding no reason to intervene in the decision of the Acting Assistant Commissioner., cluster: FACTS:  The person concerned, a 68-year-old citizen of Saint Lucia, came to Canada as a visitor in 2003 and has remained here ever since. She has three sisters, two adult sons, and their respective families living in Canada. The person concerned submitted an application for permanent residence on humanitarian and compassionate grounds under subsection 25(1) of the Immigration and Refugee Protection Act in 2018. Her application was based on her establishment in Canada, the best interests of her Canadian grandchildren, and the hardship she would face if she were required to return to Saint Lucia. A Senior Immigration Officer refused the application in 2019, citing concerns about the credibility of the person concerned's evidence., cluster: ANALYSIS:  The court analyzed the standard of review applicable to the decision of the Acting Assistant Commissioner, citing Tehrankari v. Canada (Correctional Service), [2000] F.C.J. 495, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The court applied the standard of patently unreasonable to the decision, as it was based on pure findings of fact. The court also examined the CSC's decision-making process, citing subsection 82(a) of the Regulations, which requires consideration of efforts made by staff members to resolve the complaint. The court found that the CSC had considered these efforts and had not made a reviewable error in denying the person concerned's Third level appeal.Regarding the delegation of authority, the court examined the relevant legislation, including sections 75-82 of the Regulations, and Commissioner's Directive Number 081. The court held that the Acting Assistant Commissioner had the proper authority to render the final decision in the grievance process, citing subsection 2(2) of the Act, which allows for delegation of powers and functions in cases of absence, incapacitation, or vacancy., source_sentence: cluster: CONCLUSION:  Duncan v. Behdzi Ahda First Nation
Court (s) Database
Federal Court Decisions
Date
2004-08-19
Neutral citation
2004 FC 1148
File numbers
T-2212-01
Decision Content
Date: 20040819
Docket: T-2212-01
Citation: 2004 FC 1148
BETWEEN:
DORA DUNCAN and JENNIFER DUNCAN
Applicants
and
THE BAND COUNCIL OF BEHDZI AHDA FIRST NATION,
THE SETTLEMENT CORPORATION OF COLVILLE LAKE,
SHARON TUTCHO, J.B. GULLY, ROLAND CODZI,
and SARAH KOCHON
Respondents
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] The Court, by way of judicial review, quashed resolutions by certain of the Respondents purporting to remove the Applicants from their elected positions of Chief and Band Councilor respectively and purporting to set a by-election to replace them. Costs were awarded jointly and severally as against the Respondents. I issued a timetable for written disposition of the Applicants' bill of costs.
THE RESPONDENTS' POSITION
[2] The Respondents took issue as follows with only four items:
(i) item 1 (preparation of originating document and materials) should be reduced from the maximum 7 units claimed to 5 units because the issues were not particularly complex;
(ii) item 5 (preparation for contested motion) should be reduced from the maximum 7 units claimed to 4 units because its issues also were not particularly complex;
(iii) item 8 (preparation for examination) should be reduced from the maximum 5 units claimed to 3 units because the examination lasted one hour and
(iv) item 10 (preparation for status review), claimed at the maximum 6 units, should be disallowed because the Respondents should not be liable for costs of a process necessitated solely by the Applicants' failure to proceed expeditiously and because the status review was conducted in writing without the necessity of an appearance.
THE APPLICANTS' POSITION
[3] The Applicants argued that the complexity and importance of band council resolutions coupled with the detail and volume of the supporting materials and with the lengthy consultations with counsel warrant the maximum 7 units for item 1. The amount of work that was required justifies the maximum 7 and 5 units respectively for items 5 and 8. For item 10, the Applicants asserted that they had been ready for trial and that the Court decided that the delay did not warrant a dismissal. The Respondents' materials did not establish prejudice as a consequence of delay. The status review required considerable preparation time notwithstanding its conduct in writing.
[4] The Applicants argued further to Mark M. Orkin Q.C., The Law of Costs, Second Edition, (Aurora, Ont.: Canada Law Book, 2003) at para. 222.1 (page 2-220.4) that the time spent by one counsel should not be the measure of the reasonableness of time spent by another counsel in providing representation necessary in the best interests of the latter's client. As well, the Law of Costs supra holds at para. 222.3.1 (page 2-220.11) that some courts have been reluctant to interfere in the face of assertions of excessive hours claimed for counsel's time and that some courts have said that party and party assessments of costs must acknowledge legitimate efforts of counsel relative to their clients and the courts.
ASSESSMENT
[5] I concluded at paragraph [7] in Bruce Starlight et al v. Her Majesty the Queen, [2001] F.C.J. 1376 (A.O.) that the same point in the ranges throughout the columns in the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances and that some generalization is required between the available values in ranges. I will exercise discretion consistent with my approach in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and with the sentiment of Lord Justice Russell in Re: Eastwood (deceased) (1974), 3 ALL. E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", in sorting out a reasonable result for costs. I do not think that this was the most complex instance of litigation. I allow 6 units for item 1. I have examined the materials associated with the interlocutory motion (by the Respondents for leave to file additional affidavits) in issue: I allow 5 units for item 5.
[6] My allowance for item 1 reflected my sense for this litigation that strong feelings in a small and somewhat isolated community may have made the pre-hearing environment somewhat awkward. I allow the 5 units as claimed for item 8. As with some other steps in this litigation, the Applicants asserted the challenges facing the administration of justice in Northern Canada, including geography and limited resources, as factors affecting the process of status review. I think that an allowance is warranted for item 10, which I fix at 4 units.
[7] The Applicants' bill of costs, presented at $7,810.18, is assessed and allowed at $7,221.68.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, British Columbia
August 19, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2212-01
STYLE OF CAUSE: DORA DUNCAN ET AL.
v.
THE BAND COUNCIL OF BEHDZI AHDA FIRST NATION ET AL.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS BY: CHARLES E. STINSON
DATED: August 19, 2004
SOLICITORS OF RECORD:
Lawson Lundell FOR THE APPLICANTS
Yellowknife, NWT
Field LLP FOR THE RESPONDENTS
Yellowknife, NWT

sentences: cluster: ANALYSIS:  The court considered the applicants' bill of costs, which included items for preparation of originating documents, preparation for a contested motion, preparation for examination, and preparation for a status review. The respondents argued that certain items should be reduced or disallowed, while the applicants argued that the complexity and importance of the case justified the claimed costs. The court allowed 6 units for item 1, 5 units for item 5, 5 units for item 8, and 4 units for item 10. The court also noted that the challenges facing the administration of justice in Northern Canada, including geography and limited resources, were factors affecting the process of status review., cluster: CONCLUSION:  The court assessed the applicants' bill of costs at $7,221.68, which is $588.50 less than the claimed amount of $7,810.18. The court's assessment of costs reflects its exercise of discretion in taking into account the circumstances of the case, including the complexity and importance of the case, as well as the challenges facing the administration of justice in Northern Canada., cluster: ANALYSIS:  The court found that the Officer's best interests of the child (BIOC) analysis was flawed and rendered the decision unreasonable. The Officer's assessment was highly generalized and failed to properly identify and define the granddaughter's needs or examine them with a great deal of attention. The Officer failed to consider the emotional and practical hardships the granddaughter would face if the person concerned was forced to leave the country, despite evidence of hardship on the record. The Officer also placed undue emphasis on the degree to which the granddaughter depends on the person concerned, rather than considering how the person concerned's departure would impact the granddaughter in the particular circumstances of the case., source_sentence: cluster: FACTS:  Canada (Public Safety and Emergency Preparedness) v. Imalenowa
Court (s) Database
Federal Court Decisions
Date
2022-09-13
Neutral citation
2022 FC 1286
File numbers
IMM-6854-21
Decision Content
Date: 20220913
Docket: IMM-6854-21
Citation: 2022 FC 1286
Ottawa, Ontario, September 13, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
and
PRINCE UYI IMALENOWA
Respondent
JUDGMENT AND REASONS
I. Nature of the matter
[1] This is an application for judicial review of a decision by the Immigration Appeal Division [IAD], dated September 22, 2021 [Decision], staying the Respondent’s removal from Canada. The Respondent is a 43-year-old permanent resident of Canada and citizen of Nigeria. The Immigration Division [ID] issued a removal order for reasons of serious criminality, because of the Respondent’s conviction for identity theft fraud involving as many as 50 individuals. He was convicted and sentenced on one count. The Respondent did not challenge the legality of the removal order, but sought a stay from the IAD on humanitarian and compassionate [H&C] grounds.
[2] The Respondent based his request for H&C in part on a fraudulent letter from his ex-spouse in support. The IAD found he had fraudulently written and forged his ex-wife’s signature on the letter he gave it. The letter contained material falsehoods. He was found not credible, lacking remorse, did not appreciate the wrong he had done others and had other failings noted by the IAD.
[3] That said, the IAD granted a stay, finding sufficient H&C grounds based on “moderate establishment” in Canada and “hardship” he would suffer if removed to Nigeria. The hardship was based mainly on the state of Nigeria’s healthcare system, the IAD finding among other things the Respondent would have to pay for his own drugs, which appears to be relatively common in Nigeria, but which creates hardship for indigent persons. The IAD found the Respondent could “re-establish himself in Nigeria and earn an average person’s wages” from which it appears he is not indigent.
[4] The Applicant notes for the first time that the Respondent in his H&C relies on a list of prescriptions that weren’t his. The list was someone else’s prescription, which was agreed. The Respondent said the fault was with his doctor and or his lawyer, essentially asserting neither looked at them before they were filed with the IAD. I take it he also asserts the IAD likewise failed to examine them. The Respondent filed the proper list before this Court. Respondent’s counsel agreed I should not assess or weigh the different list, but also said essentially that the Court should not ignore his new evidence either. In addition, the medical records relied upon by the IAD were not updated after the ID and were by then 2 ½ years old.
[5] Judicial review will be granted because of my inability to assess the veracity and weight to be given the newly filed prescription list, which was central to the IAD’s determination of hardship, and issues with respect to the justification, rationality and intelligibility of the IAD’s determinations.
II. Background Facts
[6] The Respondent arrived in Canada in 2011 and made a refugee claim based on his fluid sexual orientation. His refugee claim was rejected.
[7] He met someone in Canada and married her in 2012. The Respondent received his permanent residency through her sponsorship in 2013. The marriage lasted eighteen months or so and ended in divorce.
[8] The Respondent was convicted in April 2018 of one count of identity fraud. The underlying activities took place between July and December 2014. The Respondent was originally charged with fraudulently impersonating at least 50 people to obtain credit cards in their names. His sentence included an intermittent jail sentence of 90 days and two years probation, as well as forfeiture and financial conditions.
[9] Immigration authorities completed a section 44 report under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Respondent had the opportunity to make submissions on H&C factors. As part of this process, the Respondent submitted a letter purportedly from his spouse. The IAD found the letter fraudulent – it was in fact written by the Respondent and contained false information and a forgery for a signature. For example, the letter was dated January 2019 and indicated the couple were married for almost seven years. In fact they were married for only 18 months and divorced in 2015.
[10] As noted, the IAD found the Respondent forged the signature of his ex wife on the fraudulent letter, which I note praised the Respondent for his “honesty”, another falsehood.
III. Decision under review
[11] In granting the stay of removal, the IAD set out to review the Respondent’s H&C considerations in light of the factors established in Ribic v Canada (Minister of Employment and Immigration), 1986 CarswellNat 1357 at para 14 [Ribic]. The IAD considered “the seriousness of the offences giving rise to the removal order; the Appellant’s remorse; possibility of rehabilitation and the risk of reoffending; length of time spent in Canada; extent to which the Appellant is established in Canada; family support in Canada and the impact of removal upon the family; community support; and any hardship if the Appellant were to be removed to his country of citizenship.”
[12] The IAD found the offence was serious: the conviction involved credit card fraud, which despite not being a violent crime, has “grave consequences for the victim” of which there were as many as 50.
[13] The IAD found the Respondent “was not sincere when he expressed remorse”. The IAD found the Respondent lacked credibility when addressing both the conviction and the fraudulent letter. The IAD found that “[h]is submitting a forged letter to immigration authorities after having been convicted amounts to his committing a further fraud.”
[14] Although the Respondent testified at the hearing that he did not know what he was doing with the credit cards was illegal, the IAD found this testimony untruthful and that the Respondent recognized he was involved in a criminal activity from the beginning. The IAD found the Respondent “wrote the letter himself, signed it fraudulently as his former spouse, and submitted it to immigration authorities.”
[15] The IAD found the Respondent had not fully accepted responsibility for either of his actions, the criminal conviction or the fraudulent letter.
[16] The IAD found the Respondent posed a “moderate risk” of reoffending based on his having no further convictions since the reportable offence. It also found he had a moderate possibility of rehabilitation. He had taken a number of courses and certificates to make himself more employable. He also completed his probation. The IAD noted that normally an individual with one conviction and attempts to rehabilitate himself would have a high possibility or rehabilitation and pose a low risk for reoffending.
[17] However, the IAD found the Respondent did not appreciate the consequences of his actions, evidenced by his lack of credibility at the hearing and the fraudulent letter. The IAD found the Respondent had not “fully made efforts to address the factors that led to his criminal behaviour”, leading to the IAD concluding the Respondent had a moderate possibility of rehabilitation and a moderate risk of reoffending.
[18] The IAD found the Respondent’s time in Canada was a moderately positive factor, as he had spent 10 years in Canada, but committed the offences within four years of arriving. The IAD also found the Respondent was only moderately established in Canada, as he owned no real estate and had no investments, but had a job, a car, and some savings. Notably, the record shows the steady job was recently acquired.
[19] The IAD found the Respondent had no family support in Canada. It assigned little weight to the support letters he filed from his friends, because the letter he filed from his ex wife was fraudulent.
[20] The IAD found the Respondent would suffer a hardship if he were removed to Nigeria due to diabetes, high cholesterol, a pulmonary embolism, cataracts, and a number of surgeries. However his medical records were two and a half years old and it appears not all of these conditions were still relevant. Although the submitted medical documents were dated to 2019, the IAD found it was more likely than not the Respondent was still affected by diabetes and the pulmonary embolism, again based on his testimony which this time it believed. Notably the IAD earlier rejected his testimony.
[21] The IAD found the Respondent could “re-establish himself in Nigeria and earn an average person’s wages”, but that his medical conditions “would be difficult for him to address in Nigeria because of the state of the Nigerian healthcare system”. As previously noted it appears most Nigerians pay for their own medications.
[22] The IAD found the best interests of the child were neutral. The Respondent has a 15-year-old daughter in the United States, but he had not seen her since she was seven – eight years ago. The Respondent’s relationship with his daughter was electronic and the IAD found returning the Respondent to Nigeria would have little impact on how he related to his child.
IV. Issues
[23] The Applicant submits “[t]he IAD’s decision lacks an internally coherent chain of analysis justified in relation to the facts”. The Respondent submits the issue is “[w]hether the decision is reasonable.”
[24] Respectfully, the only issues are whether the Decision is reasonable, and whether this Court should assess the just now filed list of his prescriptions.
V. Standard of Review
[25] Both parties submit the standard on review should be reasonableness, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. I agree. Regarding reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Vavilov, the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] 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). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[26] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning “adds up”:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[Emphasis added]
[27] The Supreme Court of Canada in Vavilov at para 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies,” and provides guidance that the reviewing court decide based on the record before them:
[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. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[Emphasis added]
VI. Legislation
[28] The IAD granted the stay pursuant to section 68(1) of the IRPA:
Removal order stayed
Sursis
68(1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
68(1) Il est sursis à la mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
VII. Case law
[29] In Ribic, the Immigration Appeal Board established an application for equitable jurisdiction under section 72(1)(b) of the Immigration Act, 1976, SC 1976-77, c 52 (the analogous provision in prior legislation) should consider the circumstances of the case, including:
… the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical (Ribic at para 14).
[30] In Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at para 77, the Supreme Court of Canada (SCC) endorsed the Ribic approach when assessing removals under section 70(1)(b) of the Immigration Act, RSC 1985, c I-2. The SCC confirmed the Ribic factors apply to IRPA in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 137.
VIII. Analysis
[31] The Applicant submits the Decision lacks an internally coherent chain of analysis and that the IAD granted exceptional relief on an unjustifiably low standard. Overall, I agree.
[32] The Respondent submits the Applicant is asking the Court to reweigh the evidence and reach a different conclusion. The Respondent’s submissions focus on the broad, discretionary jurisdiction of the IAD regime and the SCC’s endorsement of the Ribic factors in Chieu and Khosa. The Respondent submits the IAD properly considered the Ribic factors in the Decision.
A. The reasons lacked an internally coherent and rational chain of analysis
(1) Medical conditions and records
[33] The Applicant alleges the Decision lacks internal rationality in how the IAD treated the Respondent’s medical conditions and documents. First, the Applicant submits the IAD’s acceptance of the Respondent’s testimony on his continuing medical conditions in lieu of documentary support, given the credibility findings, was irrational. Second, the Applicant submits the IAD misapprehended evidence on a central aspect of the Decision.
[34] In my view, the determinative issue is the treatment of the medical records. The Applicant submits, and I agree, that the IAD misapprehended evidence on a central aspect of the Decision. The Decision was largely based on the assertion the Respondent required prescription medication, but the prescription records submitted to the IAD were not the Respondent’s. The Respondent and his team produced and relied on someone else’s prescription list.
[35] In effect the Respondent says neither he, his pharmacist, his lawyer nor the IAD actually looked at the prescriptions he filed with the IAD. Instead it seems it is up to the Court to assess this central new evidence de novo.
[36] That said, a central and key findings of the IAD is the Respondent would suffer hardship caused by difficulty in obtaining his required medications in Nigeria. The IAD noted the Respondent’s medical documents were only dated to 2019, but found it was likely the Respondent was still affected by the conditions. Whether or not the Respondent requires prescription medication is therefore central to the Decision.
[37] Yet, and with respect, we do not know whether and to what extent prescriptions are needed and for what and in what amounts, frequency or otherwise.
[38] The Respondent acknowledges the prescription record was not in his name – although he has to because that is obvious on the record. He says an “accurate and updated Prescription history” is an exhibit attached to his Affidavit. I am unable to assess that assertion.
[39] The prescription record submitted by the Respondent is dated December 7, 2021, which is after the Decision was issued.
[40] The Applicant contends the Respondent’s acknowledgement of the erroneous records and submission of revised records supports the argument the IAD misapprehended evidence on central aspect of decision. The Applicant further submits the provision of evidence dated after the Decision confirms the matter should be sent back for redetermination. I cannot but agree with these self evident submissions.
[41] In my view, the entirely inappropriate and inaccurate prescription record filed, and the obvious inattention to it by all parties including the IAD are sufficient grounds to grant this judicial review. The hardship, particularly in obtaining prescription medications, was a key factor in the Decision granting the stay on H&C grounds. If the Respondent does not require prescription medication, that ground is invalid.
[42] Further, the fact the issue was not raised at the hearing and the Respondent did not have an opportunity to address the issue, also supports allowing this application and remitting the Decision for redetermination.
[43] Additionally, it is well established that judicial review is based on the material before the decision maker (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20). Therefore, this Court is unable to consider whether the updated medical records are sufficient to establish whether the Respondent still requires prescription medication.
[44] Judicial review will be ordered on this ground.
(2) Rehabilitation and reoffending
[45] The Applicant also submits, and I also agree, there is a lack of internal rationality in the Decision that is “particularly obvious” in the IAD’s positive weighing of rehabilitation in light of the findings on lack of credibility, the absence of remorse, the lack of insight into his criminality, his moderate likelihood of reoffending and his lack of support not to mention the Respondent’s continued fraud on the IAD itself.
[46] The IAD made numerous explicit findings on the Respondent’s lack of remorse and continued use of fraudulent documents. While the Applicant highlights a dozen of the IAD’s findings, some of the most significant are:
“His submitting a forged letter to immigration authorities after having been convicted amounts to his committing a further fraud”;
“His actions after his conviction and his lack of credibility at this hearing indicate that he does not appreciate the consequences of his actions”;
“His submitting a fraudulent letter after committing fraud, then testifying in a way that is simply not credible, demonstrate that the Appellant has not fully made efforts to address the factors that led to his criminal behavior”; and
“His submitting the letter mirrors the criminal offence that led to his removal order”. The Applicant did not highlight this finding, but in my view, this comment confirms the Respondent was still engaging in the same illegal behaviour that led to the removal order being issued in the first place.
[47] In my respectful view, the IAD’s finding the Respondent “has a moderate possibility for rehabilitation and poses a moderate risk of reoffending” in light of the findings on the fraudulent letter and the Respondent’s lack of remorse is a close to if not a fatal flaw in the logic of the Decision. The IAD’s findings demonstrate that even during the removal proceedings, the Respondent engaged in the sort of fraudulent behaviour that led to his inadmissibility. The IAD does not indicate why, when the Respondent engaged in the same fraudulent activity, is not remorseful, and does not have insight into his criminality, it found his rehabilitation “a moderate possibility”. The fraudulent letter was submitted after the Respondent completed his probation, which further suggests those actions did not lead to rehabilitation, even moderately. In my view such conduct attacks the integrity of the immigration system and must be considered in light of constraining law to that effect.
[48] The finding with respect to hardship in the absence of a pharmacy record is an obvious case of an unjustified and unintelligible finding leading to unreasonableness and judicial review. Again here, the IAD does not explain or come to grips with how the cascade of negative findings justify a finding of moderate likelihood of rehabilitation, particularly the blatant fraud on the IAD itself. The Decision does not indicate any programs, treatment, or therapy the Respondent has subsequently engaged in that might assist him in gaining insight into his criminal activities. I am compelled to conclude the finding of a “moderate possibility for rehabilitation” is neither justified nor intelligible and thus unreasonable per Vavilov.
B. The IAD granted exceptional relief on an unreasonably low standard
[49] The Applicant acknowledges the Court owes a high degree of deference to the IAD’s assessment of H&C factors, but submits the IAD granted H&C relief based only on some hardship without considering such relief is exceptional in nature, not routine. I agree. Such a finding is contrary to the majority judgment in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [per Abella J] at para 23: “There will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds” under section 25 of IRPA, and I would say the same for subsection 68(1) of IRPA.
[50] Further, the Applicant asserts the IAD must not exercise its discretion routinely or lightly, and again I agree: Canada (Citizenship and Immigration) v Ndir, 2020 FC 673 [per St-Louis J] at para 31, 39; and Canada (Public Safety and Emergency Preparedness) v Abou Antoun, 2018 FC 540 [per Lafrenière J] at para 19.
[51] Otherwise, H&C simply becomes an alternative routine and unexceptional immigration scheme, which it is not.
[52] Judicial review will be granted on these grounds as well.
IX. Conclusion
[53] In my respectful view, the Decision is unreasonable for the reasons noted. Therefore judicial review will be granted.
X. Certified Question
[54] Neither party proposed a question of general importance and none arises.
JUDGMENT in IMM-6854-21
THIS COURT’S JUDGMENT is that judicial review is granted, the Decision of the IAD is set aside, this matter is remanded for reconsideration by a differently constituted IAD, no question of general importance is certified and there is no Order as to costs.
"Henry S. Brown"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-6854-21
STYLE OF CAUSE:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v PRINCE UYI IMALENOWA
PLACE OF HEARING:
HELD BY WAY OF VIDEOCONFERENCE
DATE OF HEARING:
SEPTEMBER 8, 2022
JUDGMENT AND REASONS:
BROWN J.
DATED:
SEPTEMBER 13, 2022
APPEARANCES:
Bradley Bechard
FOR THE APPLICANT
Adetayo G. Akinyemi
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Attorney General of Canada
Toronto, Ontario
FOR THE APPLICANT
Adetayo G. Akinyemi
Barrister and Solicitor
Toronto, Ontario
FOR THE RESPONDENT

sentences: cluster: FACTS:  This case involves an application for judicial review of a decision by the Immigration Appeal Division (IAD) to stay the removal of a 43-year-old permanent resident of Canada, who is a citizen of Nigeria. The person concerned was convicted of identity theft fraud involving as many as 50 individuals and was sentenced to 90 days in jail and two years of probation. He did not challenge the legality of the removal order but sought a stay on humanitarian and compassionate (H&C) grounds. The IAD found that the person concerned had fraudulently written and forged his ex-wife's signature on a letter he submitted in support of his H&C application. However, the IAD granted a stay, finding sufficient H&C grounds based on "moderate establishment" in Canada and "hardship" he would suffer if removed to Nigeria. The hardship was based mainly on the state of Nigeria's healthcare system, where the person concerned would have to pay for his own medications., cluster: ISSUES:  The issue before the court was whether the PRRA Officer's decision was reasonable, given the person concerned's claims of risk in the DRC due to his untreated mental illness. The court had to determine whether the Officer's findings regarding the availability of medical treatment and state protection in the DRC were supported by the evidence and whether the Officer had properly assessed the risks faced by the person concerned., cluster: RULES:  The court applied the reasonableness standard of review, as established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. 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. The court must examine the reasons provided with "respectful attention" and seek to understand the reasoning process followed by the decision-maker to arrive at the conclusion., source_sentence: cluster: ISSUES:  Abdou v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-05-26
Neutral citation
2014 FC 500
File numbers
T-1638-13
Decision Content
Date: 20140526
Docket:
T-1638-13
Citation: 2014 FC 500
Ottawa, Ontario, May 26, 2014
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
HATEM SALAMA RE ABDOU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal of the decision of Wojciech Sniegowski, a Citizenship Judge with the Citizenship Commission, Immigration Canada [the Judge], pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [the Act]. The Judge denied the Applicant’s application for Canadian citizenship by deciding that he did not meet the residency requirement as defined in 5(1)(c) of the Act. .
I. Issues [2] The issues are:
A. Was the Judge’s decision reasonable in finding that the Applicant did not meet the residency requirement in 5(1)(c) of the Act?
B. Did the Judge breach the duty of procedural fairness?
II. Standard of Review [3] The issues involving the assessment of evidence and of mixed fact and law are reviewable on the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47-48 51, 53-54, 57, 62, 64; Singh v Canada (Minister of Citizenship and Immigration), 2008 FC 408 at para 10).
[4] The issue of procedural fairness is reviewable on the standard of correctness (Dunsmuir, at paras 57, 79; Navidi v Canada (Minister of Citizenship and Immigration), 2012 FC 372, at para 13 [Navidi]).
III. Background [5] The Applicant is a stateless individual who was born in Kuwait. He arrived in Canada on June 7, 2003, and became a Permanent Resident of Canada on that date. He made an application for Canadian citizenship on August 8, 2008. For purposes of the residency requirement in 5(1)(c) of the Act, the Relevant Period at issue is August 8, 2004, to August 8, 2008 [the Relevant Period].
[6] In his original application for citizenship, the Applicant listed three absences from Canada totalling 354 days. This includes a 320 day absence to Kuwait from 2004-2005. However, in his follow-up Residency Questionnaire, the Applicant listed only 34 days of absence, omitting the 320 day absence to Kuwait listed in his original application.
[7] In support of his application, the Applicant submitted numerous documents, including:
• Records with the Ontario Ministry of Health;
• Notices of Assessment for 2003-2006, 2008;
• Gas receipts;
• Report cards for his children in Ontario schools;
• Incorporation documents for 6612237 Canada Limited, a corporation for which the Applicant is an Officer and Director;
• Banking records showing numerous wire transfers beginning in March, 2006;
• Documentation pertaining to the removal of conditions that were imposed on him as a Permanent Resident;
• Copies of two passports belonging to the Applicant. One is valid from September 15, 2002, to October 2, 2004, and contains a Kuwaiti residence permit valid from September 24, 2001, to September 9, 2004. The other is valid from May 5, 2009, to May 4, 2014, and contains a Kuwaiti residence permit valid from May 20, 2009, to July 3, 2010;
• A Citizen’s Report from the Hamilton Police Service, which notes that his passport was not recovered after a stolen vehicle was returned to the Applicant, on or around October 3, 2007; and
• Documents regarding financial and real estate dealings.
[8] The Applicant did not submit a passport which covered the period from September 10, 2004, to May 4, 2009.
[9] The Applicant had an interview before the Judge on April 18, 2013.
[10] The Judge evaluated whether the Applicant met the residency requirement in 5(1)(c) of the Act in accordance with the test from (Re) Pourghasemi, [1993] FCJ No 232 (TD) [Pourghasemi]. In so doing, the Judge was not satisfied that the Applicant had proven that he was physically present in Canada for 1,095 days during the relevant period.
[11] The Judge noted credibility concerns regarding the discrepancy between the absences listed on his original application (354 days) and his residence questionnaire (34 days). Additionally, without a passport submitted that was valid for the bulk of the Relevant Period, his absences were not verifiable.
[12] The Judge found that the banking records submitted to prove the sale of construction equipment were more consistent with money transfers aimed at supporting family in Canada. This is supported by the fact that on his Residence Questionnaire, the Applicant claimed he sold his construction company in 2004.
[13] Further, the Judge found that the lack of any reported income in 2003 and 2004 does not support his contention that he lived in Canada during the Relevant Period.
[14] Based on the information submitted, the Judge was not satisfied that he had met the test from Pourghasemi (Atwani v Canada (Minister of Citizenship and Immigration), 2011 FC 1354, at paras 12, 18).
IV. Analysis A. Was the Judge’s decision reasonable? [15] The Applicant makes limited submissions on the reasonableness of the Judge’s decision. His arguments amount to a claim that the Judge failed to properly consider the evidence of the Applicant’s Ministry of Health records, gas receipts, and documentation pertaining to the removal of conditions imposed on him as a Permanent Resident.
[16] While the Judge did not cite all the evidence mentioned by the Respondent, as a whole the Judge’s decision was reasonable. There was a significant discrepancy between the absences declared in the Applicant’s original application and his Residence Questionnaire. The lack of a passport to verify these absences leaves the Applicant without clear or convincing evidence of his physical presence in Canada during the Relevant Period. In addition, it was reasonable of the Judge to find that the money transfers were more consistent with supporting family in Canada than of the gradual selling of construction equipment, given that the Applicant claimed he sold his construction equipment in 2004.
[17] The Applicant’s arguments amount to assertions that the Judge failed to appropriately consider the evidence. This is not sufficient to show that the Judge’s decision was unreasonable.
B. Did the Judge breach the duty of procedural fairness? [18] The Applicant notes that section 1.10 of the Citizenship Policy Manual [the Manual] suggests that a high degree of procedural fairness may be required of a citizenship judge due to the nature of the rights at issue. At sections 1.12 and 1.19 of the Manual, the content of this duty is described as including the right to be heard and that it may be unfair for a citizenship judge to base a decision on information that the applicant has not had an opportunity to comment on.
[19] The Applicant argues that he was never given an opportunity to address a number of the Judge’s concerns. First, the Judge did not question him about the discrepancy in the absences declared in his citizenship application and his Residence Questionnaire. Second, the Judge did not give the Applicant an opportunity to explain why he was unable to submit a passport to corroborate his stated absences. Third, the Judge drew a negative inference from the Applicant’s history of money transfers, without giving the Applicant an opportunity to explain how these transfers reflect Kuwaiti business practices.
[20] As these findings were central to the Judge’s decision, the Applicant argues that he ought to have been given an opportunity to respond to them.
[21] At paras 8 and 10-12 of his affidavit, the Applicant describes a number of issues that were not raised by the Judge in his interview:
8. At the outset of the interview, the citizenship judge flatly told me he did not want to see any documents that I had in my possession. The citizenship judge was mainly focussed on questioning me about the money I brought to Canada by means of selling heavy construction equipment in Kuwait…
10…I was never questioned by the citizenship judge at my interview concerning the discrepancy which I was in a position to explain and satisfy the citizenship judge as to why and how the discrepancy came about.
11…the citizenship judge did not provide me with an opportunity to address his concerns concerning the missing passport and if he had allowed me the opportunity to address his concerns, I would have been able to provide evidence concerning my trips during the years 2004 and 2009 outside Canada.
12…I was not questioned by the citizenship judge concerning any medical problems that my family members had during the time I was in Canada and if he had done so, I would have been in a position to show the citizenship judge that I had to be in Canada for approximately one year when my daughter, Tala lost an eye due to an accident which occurred in or about October 2006.
[22] This summary is supported by the notes of the interview provided by the Judge at pages 30-32 of the Certified Tribunal Record. These notes primarily relate to the money the Applicant brought into Canada, the alleged sale of heavy construction equipment by the Applicant, and some background information.
[23] A fair reading of the Applicant’s affidavit and the Judge’s notes shows that the Judge did not focus his questioning on the discrepancy in the absences declared, the lost passport, or the other documentary evidence submitted.
[24] The content of the procedural fairness required of a Judge in the context of a citizenship interview was described in Johar v Canada (Minister of Citizenship and Immigration), 2009 FC 1015, at para 41 [Johar]:
The Citizenship Judge is not obligated to provide an appellant with an opportunity to file additional material. The process cannot become a running commentary on the adequacy of the appellant's evidence (Zheng v. Canada (MCI), 2007 FC 1311, 163 A.C.W.S. (3d) 120, per Justice Simpson at para. 14). However, it is well established that an interview with the Citizenship Judge is "clearly intended to provide the candidate the opportunity to answer or, at the very least, address the concerns which gave rise to the request for an interview in the first place", and when an appellant is deprived of the opportunity to address those concerns, a denial of natural justice occurs (Stine v. Canada (MCI), [1999] F.C.J. No. 1264 (QL), 173 F.T.R. 298, per Justice Pelletier at para. 8; Tshimanga v. Canada (MCI), 2005 FC 1579, 151 A.C.W.S. (3d) 18, per Deputy Justice Rouleau at para. 17-19).
At issue in Johar was a lost passport and credibility concerns relating to that loss, similar to this case.
[25] The Respondent cites Navidi in support of its position. In Navidi, the applicant’s travel history included a number of undeclared absences. The judge held that this undermined the applicant’s credibility and none of the other evidence submitted by the applicant was sufficient to show that 5(1)(c) of the Act was satisfied. The applicant claimed that he had not been afforded due procedural fairness as he was not given an opportunity to respond to the negative credibility finding in his interview. However, in Navidi, the judge did request additional submissions of the applicant (Navidi, at para 31).
[26] The Judge’s decision in this appeal hinged on a negative credibility finding, based on the discrepancy in the absences declared by the Applicant. As in Johar, the Judge did not raise this discrepancy with the Applicant. Given the necessary procedural fairness afforded to applicants in citizenship applications and the centrality of this issue to the Applicant’s claim, I find that there was a breach of procedural fairness.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The Applicant’s appeal is allowed and his application is referred back to another Citizenship Judge for re-determination.
"Michael D. Manson"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-1638-13
STYLE OF CAUSE:
HATEM SALAMA RE ABDOU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Toronto, ontario
DATE OF HEARING:
May 21, 2014
REASONS FOR JUDGMENT AND JUDGMENT:
MANSON J.
DATED:
May 26, 2014
APPEARANCES:
Donald Greenbaum
For The Applicant,
HATEM SALAMA RE ABDOU
Suzanne M. Bruce
For The Respondent,
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
SOLICITORS OF RECORD:
Donald M. Greenbaum, QC
Barrister, Solicitor & Notary Public
Toronto, Ontario
For The Applicant,
HATEM SALAMA RE ABDOU
William F. Pentney
Deputy Attorney General of Canada
Toronto, Ontario
For The Respondent,
THE MINISTER OF CITIZENSHIP AND IMMIGRATION

sentences: cluster: SUMMARY:  **(1) Facts**

The person concerned, a former member of the Canadian Forces, applied to the Minister of Veterans Affairs for a pension in respect of recurrent inversion sprains of his right ankle, which he alleged was consequential to his pensioned condition of pes planus. The Minister refused to extend pension entitlement, and the decision was affirmed by the review panel and appeal panel of the Veterans Review and Appeal Board. The person concerned sought judicial review of the decision, arguing that the Board erred in concluding that the inversion sprain was not consequent to his existing pensioned conditions.

The person concerned had served in the Canadian Forces for over 20 years, during which time he developed eight disabilities for which he received disability pensions, including pes planus of both feet. He applied for a pension in respect of recurrent inversion sprains of his right ankle, which he alleged was consequential to his pensioned condition of pes planus. The Minister refused to extend pension entitlement, and the decision was affirmed by the review panel and appeal panel of the Board.

**(2) Issue**

The issue before the court was whether the Board erred in concluding that the inversion sprain was not consequent to the person concerned's existing pensioned conditions. This question turned on two issues: (1) did the Board disregard the medical evidence; and (2) did the Board fail to apply the statutory burden of proof under the Veterans Review and Appeal Board Act.

**(3) Rule**

The court applied the standard of review of patent unreasonableness for questions of fact and reasonableness simpliciter for questions of mixed law and fact. The court also considered the statutory rules of evidence binding the Board, which required it to accept uncontradicted evidence, draw all reasonable inferences in favour of the applicant, and resolve any doubt in favour of the applicant.

**(4) Analysis**

The court found that the Board made a patently unreasonable credibility finding with respect to the medical opinion of Dr. Saunders, who had a historical professional relationship with the person concerned and had physically examined him. The Board failed to refer to Dr. Saunders' evidence that he was the person concerned's physician and had examined him, which was relevant to the decision under review. The court also found that the Board erred by not making clear whether it applied the statutory burden of proof in section 39 of the Veterans Review and Appeal Act to the facts.

**(5) Conclusion**

The court concluded that the Board's decision did not stand up to a probing examination and was therefore not reasonable. The court referred the matter back to another panel of the Board for redetermination, with instructions to weigh the evidence and apply the statutory burden of proof. If the Board concludes that the person concerned's recurrent inversion sprains of his right ankle are consequential to his pes planus, the Board must take into account that the person concerned is already receiving a small pension with respect to this same ankle injury., cluster: CONCLUSION:  The court allowed the person concerned's appeal and referred his application back to another Citizenship Judge for re-determination. The court's decision was based on the finding that the Judge's decision was not reasonable and that the Judge breached the duty of procedural fairness. The court's decision highlights the importance of procedural fairness in citizenship applications and the need for Citizenship Judges to provide applicants with a fair opportunity to address concerns raised during the interview., cluster: ISSUES:  The issues before the court were whether the Judge's decision to deny the person concerned's application for Canadian citizenship was reasonable and whether the Judge breached the duty of procedural fairness. Specifically, the court had to determine whether the Judge's decision was based on a reasonable assessment of the evidence and whether the person concerned was given a fair opportunity to address the concerns raised by the Judge during the interview.
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