Model: simonosgoode/nomic_embed_fine_tune_law
Author: simonosgoode
Pipeline: sentence-similarity
Library: sentence-transformers
Tags: sentence-transformers, safetensors, nomic_bert, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:13500, 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: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.
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