citation
string
| citation2
string
| dataset
string
| year
int32
1.88k
2.02k
| name
string
| language
string
| document_date
string
| source_url
string
| scraped_timestamp
string
| unofficial_text
string
| other
string
|
|---|---|---|---|---|---|---|---|---|---|---|
"2001 FCT 1" | "" | "FC" | 2,001 | "Adecon Ship Management Inc. v. Cuba" | "en" | "2001-02-01" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/41290/index.do" | "2022-08-18" | "Adecon Ship Management Inc. v. Cuba
Court (s) Database
Federal Court Decisions
Date
2001-02-01
Neutral citation
2001 FCT 1
File numbers
T-267-00
Decision Content
Federal Court of Canada
Trial Division
1Section de première instance de
la Cour fédérale du Canada
Docket T-267-00
Citation: 2001 FCT 1
Ottawa, Ontario, this 1st day of February 2001
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
ADECON SHIP MANAGEMENT INC.
Plaintiff
and
THE GOVERNMENT OF THE REPUBLIC OF CUBA, THE MINISTRY OF
FISHING INDUSTRY AND MERCHANT MARINE (MINISTERIO DE LA INDUSTRIA PESQUERA Y MARINA MERCANTE), THE MINISTRY OF TRANSPORT, ASSOCIATION DE NAVIERAS D E CUBA, EMPRESA NAVEGACION MAMBISA, and NAVIERA POSEIDON, O.E.E.
Defendants
(In Personam)
and
THE OWNERS AND ALL OTHERS INTERESTED IN THE VESSELS M/V CALIX, M/V AJANA (ex CARIBBEAN QUEEN), M/V GABYANA (ex CARIBBEAN PRINCESS), M/V AVON, M/V LOTUS ISLANDS, M/V LILAC ISLANDS, M/V ODELYS (ex ROSE ISLANDS), M/V RIO YATERAS, M/V RIO CUYAGUATEJE, M/V RIO NAJASA, M/V LILIET, M/V SANTANITA, M/V ANACAONA, M/V GUARIONEX, M/V DAIQUIRI, M/V CAJIO, M/V MINAS DEL FRIO, M/V GRAN PIEDRA, M/V MAGNOLIA REEFER, AND M/V BOLIVAR
Defendants
(In Rem)
-2-
ORDER AND REASONS FOR ORDER
I agree to a reconsideration of this matter, namely, my order of December 21, 2000 dismissing this action for delay because I did not have the plaintiff's response. When I made that order, I was unaware the plaintiff had made submissions which were not in the file.
In the circumstances, my December 21, 2000 order is set aside. The plaintiff is at liberty to bring a motion for default judgment under Rule 369 but should serve all defendants as it is not sufficient to have only served Ms. Strickland who acted only for the ship "Rio Cuyaguateje".
François Lemieux
J U D G E
" | "" |
"2001 FCT 10" | "" | "FC" | 2,001 | "Islam v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-02-02" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/44964/index.do" | "2022-08-18" | "Islam v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-02-02
Neutral citation
2001 FCT 10
File numbers
IMM-5745-99
Decision Content
Date: 20010202
Docket: IMM-5745-99
Citation: 2001 FCT 10
BETWEEN:
ARIF ISLAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (Board) dated October 27, 1999 wherein the latter determined that Mr. Arif Islam (Applicant) was not a Convention refugee.
[2] The Applicant, a citizen of Bangladesh, claimed refugee status, alleging that he fears persecution in his country because of his political opinions.
[3] On October 27, 1999, the Board refused the Applicant's claim on the basis that his story was not credible, in light of several inconsistencies in his oral testimony and with regard to several key documents filed in support of his claim.
[4] In spite of the arguments of Counsel for the Applicant, I am unable to find that the Board's findings were perverse, capricious or made without regard to the evidence adduced before it.
[5] Regarding the two different birth certificates, the one presented to the immigration officer upon arrival in Canada, and the other filed before the Board, after a careful review of the transcript, it is apparent that the Applicant's testimony was at the very least confusing and inconsistent. I find that the Board could only draw an adverse inference from it.
[6] With regard to the medical certificate dated June 4, 1998, respecting an incident during which the Applicant was attacked, the Board found that it "makes no sense" and "must thus be a forgery", considering that a large amount of medications was prescribed for minor injuries allegedly sustained by the Applicant, that the treatment was lengthy and the fact that the document did not mention where the Applicant had been treated. Although, I would have concluded otherwise, I am unable to find that this conclusion was not reasonably open to the Board.
[7] Again, concerning the medical certificate relating to the Applicant's 6-year-old son, the Board's conclusion that the medical certificate is a forgery was reasonably open to it from the evidence and there is no basis for the Court's intervention on this point.
[8] As to the comparison between the two medical certificates discussed above, the Board noted that the ink, the paper, the credentials and the layout were identical, and found that since the certificates came from different doctors, such similarities could not be the result of chance. Such a finding was reasonable from the evidence.
[9] Lastly, Counsel for the Applicant suggested at the hearing before this Court that the Board had directed the Applicant to limit his testimony to incidents taking place after 1998. He finds support for such assertion in Mr. Chalk's affidavit (Counsel for the Applicant at the time) which states:
During the hearing, the Board indicated to the applicant, and to me, that it wanted to hear his testimony about the events immediately preceding his departure, so he did not testify about any events prior to January 1998.1
[10] After a careful review of the transcript, I found nothing that indicates that it was the case. On the contrary, the questions asked by the Board were general in nature and focussed on establishing the reasons why the Applicant left Bangladesh. The questions were not limited to events taking place only after January 1998. For example:
BY PRESIDING MEMBER (to person concerned)
Q. Well, Mr. Islam, a very simple question has been asked. Why did you leave your country, you?2
Q. But the question asked by your lawyer was why did you leave Bangladesh? It's a long answer now. Could you tell us the problems that you have experienced in your country, personal problems.3
[11] I have no reason to believe that the transcript does not reflect what happened at the hearing and that the Applicant was not treated fairly.
[12] For these reasons, the application for judicial review is dismissed.
[13] Counsel for the Applicant asked that the following question be certified:
If the Applicant's affidavit evidence as to what transpired in the hearing room differs from the transcripts of the proceedings, is the Applicant required to raise the issue of the Tribunal Record being incomplete, or is the onus on the Respondent to question the veracity of the Applicant's affidavit of a member of the Québec Bar?
[14] The Court is not convinced that this is a serious question of general importance. This question turns on the specific facts of this case. Therefore, the Court will not certify the question.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
February 2, 2001.
__________________ 1 Application Record, Affidavit of David Chalk at p. 24.
2 Certified Tribunal Record at p. 594.
3 Certified Tribunal Record at p. 599.
" | "" |
"2001 FCT 100" | "" | "FC" | 2,001 | "Duterville v. Canada" | "en" | "2001-02-20" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/51363/index.do" | "2022-08-18" | "Duterville v. Canada
Court (s) Database
Federal Court Decisions
Date
2001-02-20
Neutral citation
2001 FCT 100
File numbers
01-T-9
Decision Content
Date: 20010220
Docket: 01-T-9
Neutral citation: 2001 FCT 100
BETWEEN:
ALBERT DUTERVILLE
Plaintiff
- and -
HER MAJESTY THE QUEEN
and
Attorney General of Canada
and
Commissioner of Correctional Services Canada
and
Deputy Commissioner of Correctional Services Canada
Defendants
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] On January 26, 2001 the plaintiff filed a motion to extend the deadline specified in s. 18.1(2) of the Federal Court Act for filing an application for judicial review of two decisions by the Warden of the Drummondville Institution.
[2] The first decision in question concerned the placement of the plaintiff in involuntary segregation on November 2, 1997.
[3] The second decision was to proceed with the transfer of the plaintiff to the Port-Cartier Institution, a decision taken by the Warden of the Institution on December 10, 1997 and approved by the Director of the Regional Reception Centre on January 5, 1998.
[4] The plaintiff had first filed his motion to be heard orally at Québec on February 16, 2001.
[5] As the plaintiff had failed to file a motion pursuant to s. 45 for an order requiring the attendance of a detainee, he was not present in court on February 16, 2001.
[6] However, the plaintiff requested in writing, by a letter dated February 15, 2001 and sent by fax to the Federal Court Registry in Québec, that the application for an extension of time to be made in the Federal Court on February 16, 2001 be heard without a personal appearance pursuant to Rule 369.
[7] It would appear that it was not possible to contact counsel for the defendants, Éric Bernatchez, and the latter appeared in Court on the morning of February 16, 2001.
[8] As Mr. Bernatchez agreed that the application for an extension of time should be considered without a personal appearance pursuant to Rule 369, the Court agreed to examine the application for an extension of time based on the record.
[9] The Court examined the affidavits submitted in support of the motion and also considered the reply record of the Attorney General of Canada on behalf of the defendants.
[10] As this was a motion for an extension of time the courts have clearly held that the plaintiff must give the Court a reasonable explanation to justify the lapse of time.
[11] In the case at bar the two disputed decisions should first have been challenged by two separate motions for judicial review: nevertheless, the two decisions are contemporary and were made over three years ago.
[12] The plaintiff must accordingly establish that he was at all times unable to file his application for judicial review within the prescribed deadlines, and further persuade the Court that he had a serious issue to be tried to justify granting the deadline extension.
[13] On the record before the Court, the plaintiff did not challenge the decision of the Warden of the Drummondville Institution to proceed to raise his security rating, a decision rendered on December 10, 1997, which finally resulted in his transfer.
[14] Further, the plaintiff filed no grievance regarding the decision to proceed with his segregation, made on November 2, 1997.
[15] The explanations offered by the plaintiff for the delay did not persuade the Court that he had a reasonable explanation of his inability to file an application for judicial review within the specified
deadline.
[16] At some points, he alleged that all his documents had been seized, yet he was in a position to provide a copy of his exchange of correspondence with the Federal Court Registry.
[17] Additionally, the plaintiff also submitted no draft of what his application for judicial review should be and the points he intended to challenge. As no serious issue to be tried was submitted to the Court, I conclude that the plaintiff was unable to persuade me that he had any chance of success.
[18] For all these reasons, the application for an extension of time is dismissed.
[19] The whole with costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 20, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: 01-T-9
STYLE OF CAUSE: Albert Duterville
v.
Her Majesty the Queen et al.
WRITTEN MOTION CONSIDERED WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER and ORDER BY: BLAIS J.
DATED: February 20, 2001
WRITTEN SUBMISSIONS BY:
Albert Duterville PLAINTIFF FOR HIMSELF
Éric Bernatchez FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANTS
Deputy Attorney General of Canada
Ottawa, Ontario
" | "" |
"2001 FCT 1000" | "" | "FC" | 2,001 | "LS Entertainment Group Inc. v. KALOS VISION LTD. AND KALOS LTD." | "en" | "2001-09-07" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/44607/index.do" | "2022-08-18" | "LS Entertainment Group Inc. v. KALOS VISION LTD. AND KALOS LTD.
Court (s) Database
Federal Court Decisions
Date
2001-09-07
Neutral citation
2001 FCT 1000
File numbers
T-163-01
Decision Content
Date: 20010907
Docket: T-163-01
Neutral citation: 2001 FCT 1000
Toronto, Ontario, Friday the 7th day of September, 2001.
PRESENT: Peter A.K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
L.S. ENTERTAINMENT GROUP INC.
Plaintiff
-and-
KALOS VISION LTD. and KALOS LTD.
Defendants
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] This motion for an extension of time within which to file a defence might not have arisen had counsel been aware of the emphasis placed on timeliness by the Rules and practice of this Court.
[2] My understanding is that in May the Plaintiff was willing to consent to a motion for an extension of time until June 12th, 2001 because settlement had been attempted. A copy of the defence was served June 14th, 2001. The Defendants sought the Plaintiff's consent to an order extending the time. By June 28th, 2001, the first motion for an extension of time was filed. It was not opposed however, the Registry referred the document to me under Rule 72 because there were no written representations. I note in an addition that the motion was supported by the solicitor's own affidavit and ordered the document returned. It appears this was done on July 20th, 2001. A motion record with an Amended Notice of Motion were filed August 15th, 2001 more than a three week delay for which no excuse has been tendered.
[3] I also note that the Plaintiff's counsel indicated that any consent he might give would be contingent on the Defendant acting promptly, which it does not appear has happened. The Plaintiff may have been willing to see the time for filing a defence extended to June, but Plaintiff's consent would not necessarily have resulted in an extension which is in the discretion of the Court. However, the fact that the Plaintiff was willing to consent, or not oppose in June, reveals there was no significant prejudice at that time. Within two days the Plaintiff's counsel had a copy of the defence and counterclaim, I therefore conclude, there would not be significant prejudice to the Plaintiff if an extension were granted.
[4] As Defendant's counsel points out by filing a copy of the intended defence he has shown an arguable defence. I have considered the propriety of filing a document concerning which leave is sought and note that a least in this case any harm could be overcome by the Court ordering it returned when refusing the leave.
[5] I do not propose to validate the late service of the statement of defence and counterclaim so that the Plaintiff may have a date from which to measure the filing of a defence to counterclaim and any reply should a defence and counterclaim be filed.
[6] I intend to allow one week from the date my order is telephoned out or sent by facsimile to the parties for serving and filing the statement of defence and counterclaim and to make such time limit peremptory.
ORDER
1. The Plaintiff shall have one week from the day this order is transmitted to his counsel by telephone or facsimile transmission to re-serve and file the statement of defence and counterclaim. This time limit is peremptory.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 7, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-163-01
STYLE OF CAUSE: L.S. ENTERTAINMENT GROUP INC.
Plaintiff
-and-
KALOS VISION LTD. and KALOS LTD.
Defendants
CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: FRIDAY, SEPTEMBER 7, 2001
WRITTEN SUBMISSIONS BY:Mr. Gary M. McCallum
For the Plaintiff
Mr. Arnold B. Schwisberg
For the Defendants
SOLICITORS OF RECORD: WEISDORF WAUD & MCCALLUM: ASSOCIATES
Barristers & Solicitors
121 Richmond Street West
Suite 1000
Toronto, Ontario
M5H 2K1
For the Plaintiff
ARNOLD B. SCHWISBERG
Barrister & Solicitor
1595 - 16th Avenue
Richmond Hill, Ontario
L4B 3N9
For the Defendants
FEDERAL COURT OF CANADA
Date: 20010907
Docket: T-163-01
Between:
L.S. ENTERTAINMENT GROUP INC.
Plaintiff
-and-
KALOS VISION LTD. and KALOS
LTD.
Defendants
REASONS FOR ORDER
AND ORDER
" | "" |
"2001 FCT 1001" | "" | "FC" | 2,001 | "Ay v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-07" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/48900/index.do" | "2022-08-18" | "Ay v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-07
Neutral citation
2001 FCT 1001
File numbers
IMM-5687-00
Decision Content
Date: 20010807
Docket: IMM-5687-00
Neutral citation: 2001 FCT 1001
BETWEEN:
CESAR G. PALU-AY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
BACKGROUND
[1] Mr. Cesar G. Palu-ay (the "applicant"), a citizen of the Philippines, made an application for permanent residence in Canada on May 15, 1998, in the independent category with the intended occupation of "Operating Room Technician", and listing in that application his current occupation as "nurse/entrepreneur". The applicant was interviewed by the visa officer on September 10, 2000.
[2] On October 4, 2000, the applicant was advised by the visa officer that his application had been refused, as he had obtained only 66 of the 70 units required, including 0 units for the occupational factor and 6 units for experience.
[3] The visa officer's refusal letter, after setting out the units he received on the assessment as Operating Room Technician, went on to hold:
Sub-sections 11(1) and 11(2) of the Immigration Regulations do not permit the issuance of a visa to applicants who have not been awarded at least one unit of assessment under the Occupational Factor and the Experience factor. You were not awarded any units under the Occupational Factor because I am not satisfied that you have performed a substantial number of the main duties as set out in the National Occupational Classification.
You were not awarded any units under the Experience Factor because you failed to demonstrate that you possess the required minimum of one year of Experience in that occupation as defined in the NOC.
[4] As is apparent, the refusal letter is inconsistent on its face on the award of units for the experience factor. In an affidavit filed in this judicial review proceeding, the visa officer explained that the six points for the experience factor shown in the point assessment portion of her refusal letter was in error and, for the reasons expressed, she never intended to award him any units for that factor.
[5] The applicant attacks the visa officer's decision by arguing that she:
(1) misinterpreted the NOC requirements for the intended occupation of Operating Room Technician and the requirement for additional training;
(2) breached the duty of fairness in the manner she carried out the interview and, specifically, because of the lack in her questioning of the applicant in the area of the performance of his duties as those duties are set out in the NOC, as well as her lack of questioning in assessing the experience factor.
LEGISLATION AND THE NOC
[6] Factor 4 (the occupational factor) in Schedule I to the Immigration Regulations 1978, (the "Regulations") as amended, reads as follows:
(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation:
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupation Classification, including the essential ones; and
(c) that the applicant is prepared to follow in Canada.
(2) The employment opportunities shall be determined by taking into account labour market activity on both an area and a national basis, following consultation with the Department of Human Resources Development, provincial governments and any other relevant organizations and institutions.
(1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession_:
a) à l'égard de laquelle le requérant satisfait aux conditions d'accès, pour le Canada, établies dans la Classification nationale des professions;
b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, dont les fonctions essentielles;
c) que le requérant est prêt à exercer au Canada.
(2) Ces possibilités sont déterminées en fonction de l'activité sur le marché du travail aux niveaux national et régional, après consultation du ministère du Développement des ressources humaines, des gouvernements provinciaux et de toute autre organisation ou institution compétente.
[7] Factor 2 (the educational and training factor) in that same Schedule reads in part:
(1) To be measured by the amount of formal education and professional, vocational, apprenticeship, or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under item 4. ...
(1) À évaluer suivant le programme d'études et la période de formation professionnelle, d'apprentissage, de formation en usine ou de formation en cours d'emploi précisés dans la Classification nationale des professions comme étant nécessaires pour acquérir les connaissances théoriques et pratiques et les compétences qu'exige la profession pour laquelle le requérant est apprécié selon l'article 4. ...
[8] NOC 3233, incorporated into the Regulations by section 2 thereof, is entitled "Registered Nursing Assistant" and lists "Operating Room Technician" as one of the examples of titles classified in this group.
[9] NOC 3233, under "Main duties", states that Operating Room Technicians perform some or all of the following duties:
-- Prepare patients for surgery by washing, shaving and sterilizing the patients' operative areas
-- Assist in surgery by laying out instruments, setting up equipment, assisting surgical teams with gowns and gloves and passing instruments to surgeons
-- clean and sterilize the operating room and instruments.
[10] NOC 3233, under "Employment Requirements" provides:
-- Completion of a college or other approved program for
registered nursing assistants is required.
-- Operating room technicians require either additional
academic training in operating room techniques or on-the-job training.
THE EVIDENCE ON THIS JUDICIAL REVIEW
(a) The CAIPS Notes
[11] The extract from the visa officer's CAIPS notes relevant to the issue in this judicial review is as follows:
Applicant stated he has been working as a nurse for approximately 18 years, mainly in the Emergency and Surgical Ward departments. Some of his experience was in Saudi Arabia.
Applicant stated he had not worked in an operating room and has not had any additional academic training or on-the-job training for this intended occupation. Applicant had difficulty explaining his previous duties when asked to elaborate on his experience:
Q. Describe what duties you performed in relation to your intended occupation?
A. As a scrub nurse.
Q. Could you expand on that more?
A. ... No comment from the applicant. . he just looked at me. . . .
I believe applicant to be a nurse and have some general knowledge of operating room based on his occupation but not any experience in that occupation.
Applicant has not worked since July 1997 in his profession. Applicant stated he has been watching his land as he does not agree with the agarian reform.
(b) The Visa Officer's Affidavit
[12] I read the visa officer's affidavit to be confirmatory of her CAIPS notes. She states why she awarded the applicant zero points under Factor 4, the occupational factor. She was not satisfied he had performed a substantial number of the main duties set out in the NOC because:
7. [...] the Applicant was unable to describe what duties he performed in relation to his intended occupation, nor to offer any description of his duties as a scrub nurse.
[13] In terms of the experience factor, for which the visa officer said she intended to award 0 points, her affidavit says that he had not actually performed a substantial number of the main duties of an Operating Room Technician as set out in the NOC, and added that he had told her he had never worked in an operating room and he had no additional academic or on-the-job training for this occupation. She added:
10. I advised the Applicant of my decision regarding his lack of experience in his intended occupation. I gave him the opportunity to ask questions and to provide a rebuttal. He did neither. Indeed, he had difficulty explaining his previous duties as a nurse when asked to elaborate on his experience.
(c) The Applicant's Affidavit
[14] In his affidavit, the applicant notes having obtained a Bachelor of Science degree in Nursing and then a M.A. in Nursing Administration and Supervision. He states that in 1978, he passed the Philippines National Nurses Board.
[15] He recites holding the position of Staff Nurse at a University Hospital in Metro Manilla, from 1978 to 1981.
[16] During the period 1982 to April 1988, the applicant served as Senior Nurse - Surgical Ward, at Beish Hospital, Gizan, Kingdom of Saudi Arabia. When he arrived there, he was immediately assigned as Senior Nurse at Beish Hospital. Since the hospital was newly-opened by the Ministry of Health, the operating room was then installed and placed under his supervision. As Senior Nurse of the Surgical Ward, the applicant rendered staffing services to the surgical and operating room respectively, and he served as Operating Room Technician due to the shortage of O.R. nurses in the hospital within the period of his employment in the facility.
[17] The applicant's affidavit does not spell out his duties as Staff Nurse and Head Nurse at the Fatima Medical Centre in Manilla during the period 04/90 to 07/97. He states that in 1997, he applied for registration with the Alberta Association of Registered Nurses, and that process has been held up by his having to show evidence of competence in the English language. He deposed his intention to write the Canadian Nurses Association test.
Analysis:
[18] Counsel for the applicant argued the visa officer misread NOC 3233 in terms of being physically present in the operating room. He says the first of the three duties reproduced in paragraph 9 of these reasons could be performed outside the operating room.
[19] I see no merit in this argument. Counsel for the applicant reads NOC 3233 microscopically. It is clear that read as a whole that some, I would say most, of the duties of an operating room technician requires operating room presence. The applicant has not impeached through cross-examination the visa officer's finding confirmed by the CAIPS notes that he told her he had never worked in an operating room.
[20] The applicant argued the visa officer was wrong in holding that a component of the employment requirement for an operating room technician was additional academic training in operating room techniques or on-the-job training which he admitted he did not have. He argued he had obtained the maximum number of units of 15 in ETF (Factor 2) which incorporated on-the-job training.
[21] I do not accept this argument. Clearly, Factor 2 contemplates a mix of formal education and on-the-job training specified in the NOC. NOC 3233 specified formal college education which the applicant has and additional on-the-job training. The applicant by his own admission, did not meet this requirement.
[22] Lastly, I fail to see, in the circumstances of this case, that the visa officer treated the applicant unfairly during the interview when she explored with him his duties and experience in his intended occupation. Counsel for the applicant said she asked him only a couple of questions in this area. I am satisfied the record establishes that the visa officer reasonably explored the applicant's experience in his intended occupation and was not convinced, on the ground the applicant was not forthcoming, he had performed a substantial number of the main duties including essential ones. I see no basis for intervention.
DISPOSITION
[23] This application for judicial review is dismissed. No certified question arises.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 7, 2001
" | "" |
"2001 FCT 1002" | "" | "FC" | 2,001 | "Mohammed v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-07" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/51593/index.do" | "2022-08-18" | "Mohammed v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-07
Neutral citation
2001 FCT 1002
File numbers
IMM-6218-00
Decision Content
Date: 20010907
Docket: IMM-6218-00
Neutral citation: 2001 FCT 1002
BETWEEN:
RAJIV MOHAMMED
SHABINA BAGEM
Plaintiffs
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review from a decision on October 30, 2000 by the Refugee Division of the Immigration and Refugee Board ("the tribunal") that Rajiv Mohammed ("the male plaintiff") and Shabina Bagem ("the female plaintiff") are not Convention refugees.
[2] The plaintiffs are citizens of India and alleged a well-founded fear of persecution for their alleged political opinions and religious belief.
[3] In his PIF the male plaintiff indicated that he was of the Muslim religion. He said he had been arrested three times as the police suspected him of complicity with Muslim terrorists. The female plaintiff, for her part, said she was arrested, tortured and raped by the police to find out where her husband was.
[4] The tribunal dismissed the male plaintiff's testimony, which it did not consider trustworthy.
[5] As to the female plaintiff's testimony, the tribunal concluded that she had undergone a difficult experience at some time. However, the tribunal concluded that the female plaintiff's problems had nothing to do with any Convention ground since the female plaintiff insisted she had no problems other than those relating to her husband's situation, and in the tribunal's opinion this was entirely fabricated.
[6] To begin with, the plaintiffs argued that the chairperson of the tribunal demonstrated bias in her comments and her general manner of dealing with their claims.
[7] It is well settled that the applicable criteria in any question of reasonable apprehension of bias is that of an informed person viewing the matter realistically and practically and that the grounds of apprehension must be serious, especially when as in the case at bar an administrative tribunal is in question (see e.g. Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369). Mere suspicion will not suffice.
[8] I consider that an informed person viewing the matter realistically and practically, and having thought the matter through, would not fear that the chairperson of the tribunal had shown bias through her conduct and her statements during the hearing.
[9] After carefully re-reading the transcript of the hearing I note that the chairperson intervened essentially to give the plaintiffs an opportunity to respond to her concerns. It is strange that the plaintiffs are now blaming her for this. In general, it is when a plaintiff is deprived of an opportunity to explain that a departure from the rules of natural justice is alleged.
[10] The plaintiffs further argued that the tribunal had acted arbitrarily in concluding that the female plaintiff was not credible. The tribunal should have determined the female plaintiff's credibility independently from that of her husband.
[11] The plaintiffs appear to have misread the decision. The tribunal's conclusion on the female plaintiff's lack of credibility related exclusively to the circumstances surrounding her sexual attack and did not question the fact that she had undergone a difficult experience. The tribunal wrote the following in this regard:
[TRANSLATION]
As to the testimony of Mr. Mohammed's wife, the tribunal considers that at some point she underwent a difficult experience. Further, following the expert testimony the tribunal again questioned his wife on this point, trying to determine the circumstances which resulted in her suffering depression. The claimant repeated several times that her claim was based on that of her husband. As the tribunal does not regard the latter's testimony as credible, it concludes that the problems which the claimant may have suffered and which are noted in two medical reports (R-15 and R-16) have nothing to do with her husband's situation.
As the female claimant insisted that she had no problems other than those related in her husband's account and as the tribunal concluded that that account had been entirely fabricated, it must conclude that her problems have nothing to do with any Convention ground.
Reasons for decision, p. 3
[12] As the tribunal found that the male plaintiff had never been suspected of terrorism, arrested or brutalized by the police, it was entirely proper for the tribunal to conclude that the female plaintiff's problems were not related to suspicions of terrorism entertained about her husband.
[13] Since the female plaintiff did not establish circumstances linking the sexual attack which she suffered to one of the Convention grounds, the tribunal properly concluded that the plaintiff's problems were not linked to one of the Convention grounds.
[14] Finally, the plaintiffs objected that the tribunal did not consider the expert opinion of Dr. Adler, who prepared a psychological profile of the plaintiff, and his testimony. I do not agree. On the contrary, the tribunal referred to this expressly in its reasons. However, it is clear that Dr. Adler's expert testimony established only one thing, namely that the female plaintiff had psychological problems, and this was recognized by the tribunal. The documentary evidence included nothing about the circumstances of the sexual attack on the plaintiff.
[15] I therefore consider that the plaintiffs did not show that a decisive error of fact was made by the tribunal or that the facts submitted to the latter were unreasonably analyzed, without regard for the evidence before it.
[16] The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
Montréal, Quebec
September 7, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010907
Docket: IMM-6218-00
Between:
RAJIV MOHAMMED
SHABINA BAGEM
Plaintiff
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-6218-00
STYLE OF CAUSE:RAJIV MOHAMMED
SHABINA BAGEM
Plaintiff
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 6, 2001
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: September 7, 2001
APPEARANCES:
Jean Fiset FOR THE PLAINTIFF
Marie Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jean Fiset FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
Date: 20010906
Docket: IMM-6218-00
Montréal, Quebec, September 6, 2001
Before: Tremblay-Lamer J.
BETWEEN:
RAJIV MOHAMMED
SHABINA BAGEM
Plaintiff
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
Judicial review of decision by Refugee Division of Immigration and Refugee Board on October 30, 2000 per Louise Robic and Marie-Andrée Lalonde in cases M99-11048 and M99-11049.
(Section 82.1 of Immigration Act)
ORDER
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
Judge
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
" | "" |
"2001 FCT 1003" | "" | "FC" | 2,001 | "Predrag v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-07" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/48129/index.do" | "2022-08-18" | "Predrag v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-07
Neutral citation
2001 FCT 1003
File numbers
IMM-6231-99
Decision Content
Date: 20010907
Docket: IMM-6231-99
Neutral Citation: 2001 FCT 1003
BETWEEN:
LAKICEVIC, PREDRAG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review of the December 9, 1999 decision of the Convention Refugee Determination Division ("CRDD") wherein the applicant's claim for Convention refugee status was rejected.
[2] The applicant, a citizen of Yugoslavia, claimed refugee status on the basis of his nationality and conscientious objection to military service. Prior to his arrival in Canada, the applicant lived in the southern part of Serbia near the Kosovo border.
[3] According to the applicant's Personal Information Form and his testimony at the hearing, he served in the Yugoslavian army from September 1988 to September 1989. When the conflict broke out in Bosnia-Herzegovina in 1991, he received a call-up notice to serve in the army again. As he did not want to take part in the war, he did not report for service and went into hiding because the military police "would just show up at your door and pick you up". From 1991 to 1993, the applicant states he avoided the military police by moving from town to town. During this period, he also worked for varying periods of time at a restaurant in Leskovac, his home town.
[4] In 1993, the applicant fled Yugoslavia and lived in South Africa for one year. He did not make a refugee claim in South Africa because he hoped things would improve and he could return to Yugoslavia which he did in 1994. Shortly after his return to Leskovac, his friends told him the military police were still looking for him. Again, he moved from town to town to avoid the military police returning at various times to work at the restaurant in Leskovac.
[5] In July 1995, when "the army was being collected for Kosovo" the applicant fled to Greece where he remained for five months. He did not make a refugee claim in Greece. He returned to his home town in early 1996. From 1996 to 1998 he worked at the post office in Leskovac but would leave for periods of time fearful of being arrested by the military police. The applicant also travelled to Germany and Italy in 1996 but did not claim refugee status in either country.
[6] The applicant states that in 1997 he was arrested and remained in custody for two months for having evaded military service. He was released after a bribe was paid and immediately began to make preparations to come to Canada. He obtained a visa, valid until August 1998, based on an offer of temporary employment as a musician at a restaurant in Toronto.
[7] The applicant arrived in Canada on February 16, 1998. When he first came to Canada, the applicant states it was with the intention of waiting out the turmoil in his own country, then returning. However, after four months the situation had deteriorated in Yugoslavia and his apartment and car had been destroyed during the bombings. The applicant first stated his intention to make a refugee claim in July 1998. He states he is a conscientious objector, and did not want to return to Yugoslavia for fear he would be conscripted into the army and would be persecuted for taking this position.
[8] The CRDD rejected the applicant's claim stating:
...the claimant has not met the burden of establishing the veracity of his allegations....
In spite of the fear expressed by the claimant to participate in war, he appears to stay and work in his small town for extended periods of time. He returned to his country of origin at the time when the conflict in Bosnia was still on. He is able to get a passport in 1998 and leave the country without any problem. At all these times he has never been spotted by the military police and has successfully evaded arrest. Based on this ... the panel has assessed the credibility of the claimant on criteria such as rationality and common sense and finds the claimant not to be credible. There is no basis for the claim that the claimant has sought refugee status for valid reasons of conscience.
[9] In reaching its conclusion regarding the applicant's credibility, the CRDD relied exclusively on its findings of implausibility and not on any inconsistencies or contradictions in the applicant's evidence.
[10] The applicant takes issue with each of the CRDD's findings of implausibility arguing that the findings are based on a misapprehension of the facts and are not supported by the documentary evidence. Only three of the issues raised by the applicant will be considered in these reasons as they are determinative of the outcome of this judicial review.
[11] In its reasons, the panel found it implausible that the applicant could have evaded the military police for such an extended period of time while working in his home town. The panel stated:
The claimant's employment history shows that he worked at the post office in Leskovac, his home town, from January 1996 to February 1998. In addition the claimant also gave testimony that he had worked for three years in the restaurant business form 1989 to 1992, 1993 to May 1993, May 1994 to July 1995, all of them in his home town. Leskovac is a small village with a population of 100,000 people. The claimant stated that in this small town everybody knew everybody else. If this were so then one wonders how the claimant managed to escape the ever-powerful watch of the military police....
Counsel for the applicant submits this finding is not supported by the evidence and that it is entirely within the realm of plausibility that the applicant could have avoided the military police.
[12] I accept this submission. In its reasons, the panel failed to address the applicant's explanation that when he learned from his friends and neighbours the military police were looking for him he would go into hiding moving from town to town to avoid arrest. Similarly, at times of active recruitment he took unpaid leaves from his work and went into hiding. Nor did the panel consider the documentary evidence regarding the significant number of conscientious objectors and deserters who avoided military service by going underground. Although the CRDD is entitled to rely on rationality and common sense in its assessment of credibility, it must consider the totality of the evidence and provide its reasons for rejecting an explanation which, on its face, is plausible. In my view, to reject the applicant's evidence in these circumstances on the basis of implausibility alone constitutes reviewable error.
[13] The next finding of implausibility with which the applicant takes issue concerns the applicant's account of his departure from Yugoslavia in 1993. The applicant testified he was not questioned at the border "because there was such a mix-up... a lot of people were running away". With respect to this evidence the panel stated:
... He was neither checked at the border crossing nor was he questioned about leaving the country at a time when the country was engaged in a war. The claimant's response that there was a mix up and that several people were running away, is not a reasonable explanation for the panel to accept particularly since his town of Leskovac was close to Bosnia.
[14] The panel was clearly in error regarding the proximity of the town of Leskovac to Bosnia. As counsel for the applicant pointed out, Leskovac is close to the eastern border of Yugoslavia while Bosnia is on the western border of the country. Counsel for the respondent conceded the panel was in error but maintained that the location of Leskovac was not material to the panel's ultimate decision. While the location of the town itself is not a material fact, it is the reliance on the erroneous fact to conclude the applicant's testimony is not credible that gives rise to a reviewable error.
[15] The applicant also submits the panel's finding that the applicant's fear of conscription was not credible was based on a misapprehension of the applicant's evidence. The panel disbelieved the applicant's fear of being conscripted, in part, because despite his fear he obtained "... a passport in 1998 with a letter from the court stating that he had no convictions against him". Although the applicant had testified earlier in the hearing he had obtained a court certificate for the purpose of obtaining his passport and visa in 1993, with respect to his departure in 1998 the applicant testified that since he already had a passport for his earlier travels, he simply renewed his passport. Clearly, the panel was in error regarding the court certificate. A further concern is that the panel did not provide any evidentiary basis for the inference it drew from the fact the applicant obtained a passport without any difficulty.
[16] For these reasons, the application for judicial review is allowed, the December 9, 1999 decision is set aside, and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
September 7 , 2001
" | "" |
"2001 FCT 1004" | "" | "FC" | 2,001 | "Socan v. 537047 B.c. Ltd." | "en" | "2001-09-07" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/42370/index.do" | "2022-08-18" | "Socan v. 537047 B.c. Ltd.
Court (s) Database
Federal Court Decisions
Date
2001-09-07
Neutral citation
2001 FCT 1004
File numbers
T-1594-00
Decision Content
Date: 20010907
Docket: T-1594-00
Citation: 2001 FCT 1004
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
537047 B.C. LIMITED and CHRIS BRADLEY
Defendants
ASSESSMENT OF COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1] The Plaintiff brought an interlocutory motion and was awarded costs against the Defendant Chris Bradley payable forthwith and in any event of the cause. The Plaintiff filed its Bill of Costs. The Defendant did not respond to notice of the timetable issued for written disposition of this bill of costs. The Federal Court Rules, 1998 do not contemplate a litigant, having proper notice of an assessment of costs and choosing not to participate, as was the case here, benefiting by an assessment officer abdicating a position of neutrality to act as the litigant's advocate in challenging given items in a Bill of Costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the tariff. I examined each item claimed in the Plaintiff's Bill of Costs and the supporting materials within those parameters.
[2] The Plaintiff's Bill of Costs, presented at $665.97, is assessed and allowed at $665.97.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1594-00
STYLE OF CAUSE:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
537047 B.C. LIMITED and CHRIS BRADLEY
Defendants
ASSESSMENT OF COSTS IN WRITING
WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: CHARLES E. STINSON
DATED: September 7, 2001
SOLICITORS OF RECORD:
Boughton Peterson Yang Anderson for Plaintiff
Vancouver, B.C.
" | "" |
"2001 FCT 1005" | "" | "FC" | 2,001 | "Robert Mondavi Winery v. Spagnol's Wine & Beer Making Supplies Ltd." | "en" | "2001-09-10" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37850/index.do" | "2022-08-18" | "Robert Mondavi Winery v. Spagnol's Wine & Beer Making Supplies Ltd.
Court (s) Database
Federal Court Decisions
Date
2001-09-10
Neutral citation
2001 FCT 1005
File numbers
T-1294-99
Notes
Digest
Decision Content
Date: 20010910
Docket: T-1294-99
Neutral citation: 2001 FCT 1005
BETWEEN:
ROBERT MONDAVI WINERY
Applicant
- and -
SPAGNOL'S WINE & BEER MAKING SUPPLIES LTD.
Respondent
REASONS FOR ORDER
NADON J.
[1] This motion by the respondent Spagnol's Wine and Beer Making Supplies Ltd., is an appeal from the decision of Prothonotary Lafrenière, dated July 13, 2001, pursuant to which he granted leave to the applicant, Robert Mondavi Winery, to serve and file the Supplementary Affidavit of Michael Beyer, sworn on March 21, 2001.
[2] I need not set out the relevant facts, as they are thoroughly summarized and reviewed by the learned prothonotary in his Reasons for Order.
[3] The proceedings giving rise to this litigation are expungement proceedings commenced by the applicant as a result of its failure to register its trademark WOODBRIDGE for wine. The Trademarks Office examiner refused registration of the applicant's trademark on the ground that the mark was confusing with that of the previously-registered trademark of the respondent, WOODBRIDGE ESTATE AND DESIGN. That trademark was registered on November 25, 1994. The respondent claims use of its trademark since 1991. As to the trademark WOODBRIDGE for wine, the applicant submits that it first sold wine in Canada in association with the trademark WOODBRIDGE in August 1989.
[4] For the reasons that follow, this appeal will be dismissed.
[5] The prothonotary's decision, which the respondent attacks in this appeal, dealt with a motion by the applicant, under rule 84(2) of the Federal Court Rules, 1998[1], for an order granting the applicant leave to serve and file the additional affidavits of Michael Beyer and Ellice Sanguinetti. The learned prothonotary, by his order of July 13, 2001, granted leave with respect to the Beyer affidavit, but refused leave in respect of the Sanguinetti affidavit. This appeal by the respondent is directed at the prothonotary's order regarding the Beyer affidavit.
[6] Rule 84(2) has been considered, on a number of occasions, by this Court. I will refer to two decisions of this Court. Firstly, in Ruggles v. Fording Coal Ltd. et al. (1999), 168 F.T.R. 106 (F.C.T.D.), Prothonotary Hargrave made, at pages 108-109, the following remarks regarding the test to be met under rule 84(2):
[5] Rule 84(2) provides that:
"A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application, except with the consent of all other parties or with the leave of the court.
This provision is similar to that found in the previous Federal Court Rules As rule 332.1(6).
[6] The law as to filing of supplemental affidavit material after cross-examination is set out by Mr. Justice Dubé in Guylaine Coté v. The Queen, an unreported 27 May 1992 in action T-1206-89, Mr. Justice Dubé referred to rule 332.1(6), considered various earlier cases and concluded that three tests emerged from that case law, tests to be satisfied in order to obtain the leave of the court:
(1) was the information in the affidavit available before the cross-examination?
(2) are the facts established by the supplementary affidavit relevant to the case?
(3) might the filing of the supplementary affidavit cause serious prejudice to the other parties?
The way in which these tests are phrased does not indicate whether one or all must be satisfied, however it is clear from the decision that all of these elements must be considered and balanced. I now turn to the affidavits in question. [Emphasis added]
[7] The Jones and Noonan affidavits, which the defendants seek to file in response to and after cross-examination of Mr. Ruggles on his affidavit, do not meet all of the tests set out Coté v. the Queen (supra). Mr. Ruggles, in his affidavit material, set out that the designation of Ms. Paulhus, as a defendant, was as a result of her name appearing on the copies of the material which he had prepared. On cross-examination Mr. Ruggles alluded to conversations which he had had with Messrs. Jones and Noonan, after he had seen the infringing material, to the effect that he wondered what Ms. Paulhus was doing using his material. The Jones and Noonan affidavits are brief and carefully worded. Mr. Jones, while agreeing that Mr. Ruggles had spoken to him about the use by Fording of the material, denies that Ms. Paulhus' name came into the conversation and further deposes that he said nothing to indicate that Ms. Paulhus was responsible for the copying or preparation of the video in question. Mr. Noonan says he has no recollection of any conversation, but then goes on to say, and here is an inconsistency, that he definitely did not discuss Judy Paulhus' involvement in the preparation or use fo the video. I now turn to the application of the tests set out in Coté.
[8] Beginning with the first branch of the test, the material in the affidavits was always available and might have been a part of the original motion for the costs of Judy Paulhus. Second, the affidavits are only marginally useful, for there is no reason, based on what is set out in the affidavits, why Judy Paulhus ought not to have initially been made a defendant. Indeed, given that Ms. Paulhus' name appeared on the copied material, together with the possibility that she might have been acting independent of Fording, it could well have been negligent not to name her as a defendant and to leave her as such until it turned out that Fording would be responsible for her name appearing on the material and her use of the material in the sale of Fording's condominium units. Third, as to prejudice, the affidavits of Messrs. Jones and Noonan, would have to be tested by cross-examination to determine several factors, including whether the conversations alleged by Mr. Ruggles, but denied by Messrs. Jones and Noonan, took place in some other time frame, for the subject matter, said by Mr. Ruggles to form a part of those conversations, would have been a very natural subject matter of conversation between Mr. Ruggles and Fording employees. Further cross-examination and further affidavits would add little to the real issue to be determined, the costs to which Ms. Paulhus is entitled.
[9] With all of this in mind, particularly the minimal impact of the Jones and Noonan affidavits and given the relatively small amount involved, the defendants do not have leave to file the Jones and Noonan affidavits.
[7] Secondly, in Salton Appliances (1985) Corp. et al. v. Salton Inc. (1999), 4 C.P.R. (4th) 491 (F.C.T.D.), Lemieux J. also had occasion to examine rule 84(2). After citing the rule, the learned judge opined as follows, at pages 496, 497 and 498:
[12] Rule 84(2) found its place in the former Rules as rule 332.1(6). The former Rules also contained rule 332.1(7) (which is not contained in the current Rules) which provided that "[T]he Court may grant leave to a party to file an affidavit in a motion after the party cross-examines the deponent of an affidavit where the Court is satisfied that the party should be allowed to respond to a matter raised in the cross-examination". Current rule 39.02(2) of the Ontario Rules of Procedure, R.R.O. 1990, Reg. 194, is framed in terms similar to former rule 332.1(7).
[13] I also note as background that when the new Rules came into force, Rule 312, in the context of application, now provides for additional affidavits with leave from the Court. The two new Rules 84 and 312 should, in my view, yield similar interpretations.
[14] Taking all of the factors, noted below, into account I am of the view the plaintiffs should have leave to file t he further affidavit of Jerry Solomon provided that he forthwith be available for cross-examination.
[15] I am satisfied the issue of whether the defendant sold to Salton Canada warming trays with glass tops without any logo is highly relevant, is in the interest of justice and will be beneficial to the Court in determining whether an interlocutory injunction should be granted.
[16] I am satisfied Rule 84(2), read in its context and against the history of the former Rules, is designed to deal with matters that arise during cross-examination for which there is a need to address by way of further affidavit with leave of the Court.
[17] The cases decided by this Court and by the Ontario Courts recognize the relevancy of the preposed affidavit, absence of prejudice to the opposing party, assistance to the Court, and the overall interest of justice are relevant factors to be taken into account in deciding whether leave to f8le a further affidavit should be granted. [See Hiram Walker Consumers Home Ltd. v. Consumers Distributing Co., court file T-4539-80 (F.C.T.D.) [reported 63 C.P.R. (2d) 93]; Gingras v. Canadian Security and Intelligence Service (1987), 19 C.P.R. (3d) 283 (F.C.T.D.); Bayer AG v. Canada (Minister of Health) (1994), 83 F.T.R. 318, 58 C.P.R. (3d) 377 (F.C.T.D.); Eli Lilly v. Apotex Inc. (1997), 144 F.T.R. 189, 77 C.P.R. (3d) 154 (F.C.T.D.).
[18] As I view the law on the point in this Court there is the additional requirement as to the non-availability of the material in the proposed affidavit prior to cross-examination; a supplementary affidavit cannot be a substitute for putting available information to a deponent on cross-examination. A further affidavit is not designed to repair answers which cross-examining counsel wishes he did not get. Moreover, normally, parties are obliged to disclose all available information before cross-examination so as to avoid splitting the evidence.
[19] The defendant, in my view, will not be prejudiced because the motion for interlocutory injunction is to be heard only at the end of May 2000, and there is ample opportunity for the defendant to move the Court and for the Court to act should it be in the interest of justice.
[20] Finally, I am satisfied that the plaintiffs met the test of a matter arising during cross-examination which could not reasonably be foreseen with reasonable diligence. It was only during cross-examination that Mr. Cruz identified the warming tray with the MAXIM logo sold to Weil as being identical to the warming trays sold to Salton Canada. It must also be kept in mind that Mr. Cruz had previously stated in his affidavit he did not have any backup material. In addition, it was only during cross-examination the plaintiffs learned the defendant only produced warming trays with logos. In my view, this was a new information of relevance arising during cross-examination. (See Merck Frosst Canada Inc. v. Canada (Minister of Health) (1998), 229 N.R. 33, 82 C.P.R. (3d) 417 (F.C.A.))
[8] Finally, I would like to refer to the decision of Quinn J. of the Ontario Court (General Division) in Nolan v. Canada (Attorney General) (1997), 38 O.R. (3d) 722 (Ont. Ct. (Gen Div)). The rule at issue before Quinn J. was rule 39.02(2) of the Ontario Rules of Procedure, which reads as follows:
39.02 (2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
[9] After noting that a number of his colleagues had interpreted rule 39.02(2) as requiring, as a threshold, that the affidavit sought to be adduced in evidence had to contain information which had been raised for the first time in cross-examination, Quinn J. proceeded to explain why he could not agree with that view of the rule. At pages 727-729, he puts his arguments in the following terms:
I must say, with the greatest of respect to the learned jurists who decided the cases just mentioned, that I find myself in disagreement with the restrictive interpretation they have given to the rule. Rule 39.02(2), by its ordinary meaning, does not require that the matter contained in the affidavit sought to be delivered must have been introduced for the first time during the cross-examination. Put another way, the rule does not preclude such an affidavit addressing a matter that was placed in issue prior to the cross-examination. The rule speaks of being permitted to respond to any matter "raised at the cross-examination". Had it been intended to limit the operation of the rule to "new" matters raised on the cross-examination, that easily could have been accomplished by the drafters of the rule.
The restrictive interpretation of the rule reflected in the foregoing line of cases can lead to unfairness (by punishing a litigant for the oversight of his or her counsel) and injustice (by excluding evidence which might be of assistance to the court in arriving at a just determination of the matter in dispute). Obviously there are sound policy reasons why the barrage of affidavits, which unfortunately characterize many motions and applications, should be controlled; however, an unduly restrictive interpretation of rule 39.02)2) is an inappropriate solution.
In my view, the rule should be given its ordinary meaning. The question to be asked is this: Was any matter raised, on the cross-examination of an affidavit delivered by an adverse party, to which the moving party ought now to be permitted to respond? The answer to that question requires a consideration of the following:
1. Is the matter that was "raised on the cross-examination" relevant to the litigation?
2. Is the affidavit, sought to be filed, itself responsive to the matter that was raised on the cross-examination?
3. If the leave sought is granted, will it operate unfairly against the adverse party? In my view, "unfairness" should be equated with non-compensable prejudice. On a motion of this variety costs should serve as the leavening; in addition to the costs of the motion in which leave is sought, if an adjournment of the substantive motion or application is required, there would be the costs thrown away, as well as the costs associated with preparing responding affidavits and conducting additional cross-examinations. Preferably the costs should be fixed and payable forthwith. Where the leave is sought to cure some blatant shortcoming in the efforts of counsel, there may be instances justifying his or her personal liability for all or a part of the costs.
4. If the leave sought is granted, what additional terms (apart from costs and an adjournment), if any, are just?
The subject-matter of the affidavit which the moving party at bar desires to deliver is highly relevant to the issues in the litigation. Even if that subject-matter was touched upon in affidavits delivered prior to the cross-examinations, it is now raised with a new focus: a new perspective. In my view, it is important, for the just determination of the issues in the litigation, that this subject-matter be thoroughly addressed by means of additional affidavit evidence and further cross-examinations, if necessary. With such a result, there is no unfairness, as I have defined that term, to the adverse party.
[10] In his written submissions, and before me at the hearing, counsel for the applicant argued that this appeal was based on the erroneous proposition that if information was available before cross-examination, this Court was barred from exercising its discretion to allow a party to file an affidavit containing that information after cross-examination had taken place. I agree entirely. I am satisfied that the rule, as interpreted by this Court, requires the judge or the prothonotary to consider and balance the following factors in deciding whether leave ought to be granted in the circumstances of the case. Firstly, the Court must ask itself whether the facts set out in the further affidavit are relevant to the litigation. Secondly, the Court must ask itself whether the information proposed to be adduced in the further affidavit was available before cross-examination, and finally, the Court must ask itself whether the filing of the supplementary affidavit will cause prejudice to the other side.
[11] The prothonotary had to consider all of the above factors and after balancing them, he had to decide whether leave ought to be granted. In the circumstances, he came to the conclusion that leave in regard to the Beyer affidavit was appropriate. The respondent has not convinced me that in reaching that conclusion, the prothonotary either failed to exercise his discretion judicially or made an error of law.
[12] With respect to the first factor (relevancy), the learned prothonotary noted that the respondent did not dispute that the proposed evidence was relevant to the central issue of the expungement proceedings.
[13] With respect to the second factor (availability of the information prior to cross-examination), the prothonotary found that the information in question had been available to the applicant prior to cross-examination. At paragraph 11 of his Reasons, the prothonotary states:
[11] The Applicant acknowledges that the supplementary affidavits contain evidence which was available prior to cross-examination. Clearly the decision by counsel to withhold the information, on the expectation that it could possibly come out on cross-examination, was wrong. This is a significant factor which militates against granting the relief sought by the Applicant.
[14] With respect to the third factor (prejudice to the other side), the prothonotary concluded that any prejudice suffered by the respondent could be remedied by an appropriate order with respect to further cross-examination and the opportunity to adduce further evidence, and an appropriate order as to costs. At paragraph 12 of his Reasons, the learned prothonotary states:
}12] Dealing next with the third factor, the parties have yet to file their respective records in this proceeding. Any procedural unfairness that the Respondent may have suffered can be addressed by allowing the Respondent to conduct further cross-examination and to adduce further evidence, coupled by an appropriate allowance for costs thrown away.
[15] I should perhaps here refer to the decision of Sharlow J. (as she then was) in J.L. De Ball Canada Inc. v. 421254 Ontario Ltd. et al. (1999), 5 CPR (4th) 352. In that case, the plaintiff objected to the defendants' attempt to adduce further evidence after cross-examination. In concluding that the evidence objected to ought to be admitted, Madam Justice Sharlow, at pages 360-361, stated:
I have concluded that all the evidence adduced by the Defendants should be admitted including the affidavit of Mr. Vettesse sworn September 28, 1999. The Plaintiff's concerns as to adequate and late disclosures are valid, and are not excused by the Defendants' professed mistakes or misunderstandings. However, the remedy for the Defendant's failure to meet its disclosure obligations is not [sic] exclude the evidence in this motion, but to make an appropriate allowance in an order for costs.
[16] That is precisely what Prothonotary Lafrenière did in the matter before him. His Order, as it appears at paragraphs 17 and 18 of his Reasons, reads as follows:
[17] The Applicant is granted leave to serve and file the additional affidavit of Mr. Michael Beyer, attached as Schedule A to the Notice of Motion.
[18] The Respondent is granted leave:
(a) to file further affidavit evidence in response to the additional affidavit of Mr. Michael Beyer referred to in paragraph 1 above; and
(b) to cross-examine Mr. Beyer in respect of such affidavit.
[17] Further, he made an order for costs, in the following terms:
[19] Costs incurred in respect of:
(a) the preparation for, conduct of, any travel expenses and other reasonable and related expenses and disbursements incurred in respect of the cross-examination of Mr. Beyer;
(b) the preparation and filing of additional affidavit evidence including, if deemed appropriate by the Respondent, additional expert evidence and all other reasonable and related expenses and disbursements; and related expenses; and
(c) the preparation of the Respondent's affiants for and attendance at cross-examination, if any, and any other reasonable and related expenses and disbursements;
shall be payable to the Respondent on a solicitor and client basis in any event of the cause.
[20] Costs of this motion are fixed at $3,000.00, inclusive of disbursements, payable to the Respondent in any event of the cause.
[18] In my view, the conclusion reached by the prothonotary that leave ought to be granted to the applicant in regard to the Beyer affidavit, coupled with leave being granted to the respondent to file further affidavits in response to the supplementary affidavit of Mr. Beyer and the right given to the respondent to cross-examine Mr. Beyer on his further affidavit, is unassailable.
[19] The respondent raised a number of additional points, which I will now address.
[20] Firstly, the respondent argues that the prothonotary failed to apply the decision rendered by Heneghan J. on January 11, 2001. According to the applicant, Madam Justice Heneghan held that the evidence contained in Mr. Beyer's supplementary affidavit was not relevant. I disagree. Firstly, in his Reasons for Order, the learned prothonotary, as I have already indicated, pointed out that the respondent did not dispute the relevancy of the information contained in Mr. Beyer's affidavit. Secondly, Mr. Beyer's affidavit was not before Madam Justice Heneghan, and therefore, she did not make any pronouncements in regard to that affidavit. In any event, it cannot seriously be argued, in my opinion, that the information which the applicant seeks to introduce by way of the Beyer affidavit, namely, labels of Woodbridge Wine for the years 1987 and 1988, is irrelevant.
[21] The respondent also submits that the prothonotary erred in granting leave to the applicant to file the supplementary affidavit of Mr. Beyer, notwithstanding his finding that the affidavit constituted an attempt to buttress the applicant's case. In my view, there is no merit to this argument.
[22] The respondent also submits that the prothonotary erred by interpreting rule 84(2) in a manner permitting the deliberate flouting of the rule. Again, in my view, there is no merit to this argument. The prothonotary considered all of the factors required by the test and concluded that, in the circumstances, leave ought to be given with respect to the Beyer affidavit, subject to appropriate safeguards being put into place to ensure that the respondent was able to fully respond to the further affidavit. In reaching that conclusion, the prothonotary determined that there had been no attempt by the applicant to conceal the information for strategic purposes. The prothonotary also concluded that there was no evidence that the applicant had acted recklessly or in bad faith. He then stated, at paragraph 15 of his Reasons:
[15] Having weighed all three factors in the exercise of my discretion under Rule 84(2), I conclude that it would serve the interests of justice to allow the Applicant to file the supplementary affidavit of Michael Beyer, subject to appropriate safeguards being put into place to ensure the Respondent is able to fully respond to the application.
[23] The respondent also argues that the prothonotary erred in considering irrelevant factors, and that he erred in not concluding that the applicant's motion to adduce further evidence constituted an abuse of process. Again, I see no merit in these arguments.
[24] Lastly, the respondent argues that the prothonotary erred in failing to find that the respondent would suffer serious prejudice if leave was granted to the applicant to file the further affidavit of Mr. Beyer. Firstly, the respondent has failed to persuade me that the prothonotary was wrong in concluding that the respondent would not suffer serious prejudice if he granted leave. Secondly, I, like the learned prothonotary, am of the view that the respondent will not suffer serious prejudice. Any prejudice suffered will be amply compensated by the Order made by the prothonotary with respect to costs and with respect to the respondent's right to file additional evidence in response to Mr. Beyer's affidavit and to cross-examine him on his further affidavit.
[25] For these reasons, the respondent's motion will be dismissed with costs in favour of the applicant.
Marc Nadon
JUDGE
O T T A W A, Ontario
September 10, 2001
[1] Rule 84 reads as follows:
84. (1) When cross-examination may be made - A party seeking to cross-examine the deponent of an affidavit filed in a motion or application shall not do so until the party has served on all other parties every affidavit on which the party intends to rely in the motion or application, except with the consent of all other parties or with leave of the Court.
(2) Filing of affidavit after cross-examination - A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application, except with the consent of all other parties or with leave of the Court.
" | "" |
"2001 FCT 1006" | "" | "FC" | 2,001 | "Alam v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-10" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/50066/index.do" | "2022-08-18" | "Alam v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-10
Neutral citation
2001 FCT 1006
File numbers
IMM-6129-00
Decision Content
Date: 20010910
Docket: IMM-6129-00
Neutral Citation: 2001 FCT 1006
BETWEEN:
SAIMA ALAM
MOHAMMED ZAHID
NAHIYAN SAIYARA KHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of Martine Beaulac, Post Claim Determination Officer (the "officer"), rendered on October 27, 2000, wherein the officer determined that Saima Alam (the "applicant"), her husband and her daughter, were not members of the post-determination refugee claimants in Canada ("PDRCC") class.
FACTS
[2] The applicant is a citizen of Bangladesh who claimed refugee status based on her political beliefs, on December 2, 1998. Her claim was based on a fear of persecution by an Islamic fundamentalist group because of her involvement in a women's rights organization, Ekota. Her refugee claim was rejected on December 22, 1999.
[3] The applicant fears that her security and her life are threatened by Moulana Ahsanullah, a religious fanatic, who opened his own religious centre in 1996 and who denounces the behaviour of women who work and do not respect the diktats of the Koran such as wearing the veil. He interprets the Koran in a way that is unfavourable to women.
[4] The applicant fears that she will be arrested if she returns to Bangladesh because the police is allegedly looking for her. She would not be able to obtain protection from the state because she is a woman and women are not protected in her country as it is an Islamic country where women are treated unfairly, are submitted to men and discriminated against because of the interpretation of the Koran made by Muslim fundamentalists.
[5] The applicant says that in December 1996, she organized a women's help group, the Ekota Mohila Sanganthan, to counteract the influence of Moulana Ahsanullah. She was elected secretary general of the centre. The group met once a week in a room of her house. At the meetings, she would inform women about their rights and encouraged them not to listen to Moulana Ahsanullah.
[6] In March 1997, her group allegedly approached the husbands of a few women that were forced to wear the veil. The results were mixed. In April 1997, the applicant and her group distributed pamphlets against Moulana Ahsanullah and his centre. As a result, stones were thrown on her house. Police did not take any steps after she complained.
[7] The applicant nevertheless participated in a procession despite the threats made by Moulana Ahsanullah. She also alleged that she received threatening phone calls in February 1998.
[8] She also stated that she tried to stop an arranged marriage between a 16 year-old girl and a man chosen by Moulana Ahsanullah. Moulana Ahsanullah did not appreciate the applicant's intervention and put pressure on the men related to women in the Ekota.
[9] In September 1998, the applicant's husband was allegedly attacked by the fundamentalists because he refused to urge the applicant to close her organization. They complained to the police but nothing was done.
[10] On October 1, 1998, Moulana Ahsanullah allegedly declared that the president and secretary general of the Ekota and the secretary who organized the Ekota group were enemies of Islam. The president was attacked and hospitalized. The applicant received phone threats, her house and the houses of two other members were damaged as well as the Ekota office.
[11] Fearing for her life and her family's security, she decided to come to Canada with her husband and her daughter.
ISSUES
[12] Did the officer ignore the evidence that was before her?
ANALYSIS
Did the officer ignore the evidence that was before her?
[13] The applicant submits that her case-specific documentary evidence was dismissed without reasons by the officer, indeed without apparent consideration.
[14] The applicant explains that the attestation by Shahnaz Parvin, research assistant at Ain O Salish Kendra, exhibit P-7, was to the effect that before being employed by Ain O Salish Kendra, Mrs. Parvin was a member of Ekota and worked in its office. The applicant points out that Ain O Salish Kendra is one of the foremost human rights organisations in Bangladesh, has for many years been a primary source for the Immigration and Refugee Board's ("IRB") research directorate, and is the author of a yearly human rights report on Bangladesh which is in the IRB's reference library. According to the applicant, Mrs. Parvin specifically corroborated the facts that the applicant put forward, yet the only mention of this document in the reasons is to group it as "lettres de support de collègues" without further mention or comment.
[15] The applicant submits that the nature and the source of the document are such that it is her strongest piece of evidence, yet it appears to have been completely ignored by the officer.
[16] Regarding exhibit P-7, the respondent notes that Mrs. Parvin writes that she was a member of the Ekota organization and that her affirmations support the applicant's allegations. The respondent submits that it appears from the letter that Mrs. Parvin only stated the fact that she works for Ain O Salish Kendra as incidental information. The respondent observes that the letter is dated July 26, 1999 and further notes that the decision of the Board was dated December 22, 1999.
[17] The applicant explains that several other supporting documents were submitted. There is a letter to the local MP, written by the applicant on October 12, 1998, after the attack on her home and the Ekota office, wherein the applicant requests his protection for the members of Ekota. There is also a police report filed by her husband on September 6, 1998, after he was assaulted by the fundamentalists. A pamphlet dated February 12, 1999 published by the fundamentalist group which was persecuting Ekota was also submitted.
[18] The applicant argues that not only was there no apparent consideration of these documents in the decision-making process, they are not even mentioned in passing by the officer when she lists the documents. While it is natural to cite the evidence which supports one's conclusion, fairness requires that the decider explain why evidence which points the opposite way was not persuasive. Otherwise, the decision is arbitrary.
[19] The respondent contends that the officer did take into account the various letters submitted as can be seen from her decision. The respondent submits that the officer did not ignore the documents but gave them little weight.
[20] On the issue of the documentary evidence submitted by the applicant, the officer wrote at page 3 of her decision:
Je constate que madame n'avait pas produit aucune preuve ou document pour démontrer l'existence du centre de femmes, lors de l'audience à la CISR, malgré qu'il y ait eu 127 membres, selon ses dires et que les réunions hebdomadaires se tenaient dans une chambre de sa résidence. Or, malgré les déclarations à l'effet qu'elle ne pouvait obtenir de documents, elle produit ces derniers avec ses observations, cependant, ils sont datés d'avant l'audience mais n'ont pas été présentés à l'audience. Cet état de faits ne me convainc pas de la véracité de son récit.
[21] The officer also stated at page 4 of her decision:
Dans les observations accompagnées d'une volumineuse documentation sur la situation des femmes au Bangladesh, se trouvent des documents que madame avait déclaré ne pas pouvoir obtenir, lors de l'audience à la CISR, tel que ci-haut mentionné, des photocopies de pamphlet sans date et leur traduction, lettres de support de collègues, divers documents personnels, comme diplômes et certificat de naissance et contrat de mariage. Le reste est constitué de renseignements généraux sur la situation des femmes au Bangladesh, articles de journaux et traductions.
[22] In the section References of the decision, the officer also wrote:
Dossier complet de madame, son mari et leur fille, incluant leur formulaire de renseignements personnels, leurs passeport originaux,
[23] In light of the officer's decision, I cannot conclude that the officer ignored the evidence provided by the applicant. The officer did not refer to all of the documents submitted but I cannot find that she erred in failing to mention them all.
[24] In Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 417 (F.C.T.D.), the Court stated:
Nor will an officer's failure to set out all the facts on which his or her decision was based or to analyse those that might have led him or her to decide otherwise necessarily justify this Court's intervention. In Vitali Moskvitchev v. M.C.I. (IMM-70-95), Dubé J., relying on a decision of the Federal Court of Appeal in Hassan v. M.E.I. (1993), 147 N.R. 317 (F.C.A.), noted the following:
There is a presumption that a tribunal has considered all the documents filed before it. The mere fact that a decision-maker fails to recite all of the evidence when rendering his decision does not necessarily imply that he ignored any evidence if a review of the reasons suggests that he did consider the totality of the evidence. . . .
[25] It appears from the officer's decision that the officer was not convinced that the applicant's story was credible because the applicant had told the Board that she could not obtain any documents but submitted them for the PDRCC class assessment. Furthermore, the documents she could not obtain for the Board predated the Board's decision.
[26] In my view, the officer was entitled to conclude as she did in light of the documents submitted by the applicant and did not err in weighing the evidence.
[27] The applicant further notes that the only reference which the officer made to the case-specific documents was to P-8, purportedly contradicting the applicant's evidence that no one at her workplace knew of her activities in Ekota. Yet the document is dated eight months after she left the country, so it allows for knowledge obtained later. Indeed, the writer states, "Though it was not clear at the moment, we later came to know from Saima Alam that the attackers were the followers of fundamentalist leader Moulana Ahsanullah and Mrs. Saima Alam was the target of this attack."
[28] Rather than contradicting the testimony, the applicant submits that exhibit
P-8 seems to confirm it, as the "moment" is October 6, 1998, referred to by Ms. Sharmin.
[29] The respondent submits that the applicant is giving her own interpretation of the exhibit and that the fact that the officer did not accept the applicant's view does not demonstrate that she erred in her conclusion. The respondent submits that the conclusion of the officer is supported by the document. The defendant further notes that exhibit P-8 is dated July 20, 1999.
[30] Regarding exhibit P-8, the officer stated at page 4 of her decision:
Madame a déclaré au panel que les gens avec qui elle travaillait n'étaient pas au courant de son implication au sein du Ekota, ni son employeur ou ses collègues, malgré qu'elle allègue que sa vie était menacée. Or, avec les observations produites aux fins de cette présente analyse, il y a une lettre de Fahmina Sharmin, datée du 20 juillet 1999 confirmant qu'elle travaillait avec la demanderesse au moment où elle a créé le centre Ekota et qu'elle accompagnait la demanderesse quand elle avait été attaquée en voiture le 6 octobre 1998, ce qui contredit les dires de la requérante à l'effet que personne n'était au courant de ses activités sociales.
[31] The applicant contends that since exhibit P-8 is dated eight months after she left the country, the author of the letter can have obtained knowledge of the applicant's social activities later.
[32] I have reviewed the letter and cannot fault the officer for her conclusion. The letter submitted is silent on when the author learned about the applicant's activities and in fact, tend to make the reader believe that Mrs. Sharmin, the author, knew about the applicant's activities before the applicant left. The letter states:
Saima Alam was deeply involved in a women's assistance organization "Ekota".
[...]
Though it was not clear at that moment, we later came to know from Saima Alam that the attackers were the followers of fundamentalist leader Mowlana Ahsanullah and Mrs. Saima Alam was the target of this attack.
Right after this incident occurred I informed the patrol Police. But they were not able to identify anybody. After this incident Mrs. Saima Alam started to receive death threats over phone. They identify themselves as soldiers of Islam and followers of mowlana Ahsanullah. They announced that they would kill Saima Alam no matter how.
[my emphasis]
[33] It is not possible from this letter to identify exactly when Mrs. Sharmin learned of the applicant's activities but the letter does support the officer's finding.
[34] The applicant also notes that the officer observed that the applicants returned to Bangladesh from their trip to Australia in July 1997, in the face of the danger which awaited them. The applicant however wonders what were the indicators of danger prior to their departure in May 1997. Stones had been thrown at the door of the Ekota office. The applicants submit that if they had claimed a fear of persecution on the basis of stones being thrown at the door of an office, they would have elicited polite smiles at best. Since there was no reason to believe that they were in danger in July 1997, the officer's conclusion is patently unreasonable.
[35] Regarding the applicant's allegation that there was no indication of danger before her return to Bangladesh on July 9, 1997, the respondent submits that the officer's conclusion is reasonable in light of the evidence (PIF, lines 43 to 54).
[36] In the PIF, the applicant states:
In April 1997 we distributed pamphlet against Mr. Ahsanullah and his Khanka Sharif. After that event a group of agitated followers of Mr. Ahsanullah threw stones at our office and damaged the front door. They gave slogans against Ekota. I went to police and asked for action against the attackers and Mr. Ahsanullah. This time police assured me take action. Later on they told me that they did not have definite proof that Mr. Ahsanullah's men carried out the attack. The attitude of police frightened my witnesses and they refused to talk further about the identity of the attackers.
[37] On this issue, I agree with the applicant that the officer cannot fault the applicant because she returned to Bangladesh in July 1997 after her trip to Australia since the indicators of danger prior to the applicant's departure in May 1997 were not sufficient. However, in light of the other reasons given by the officer, this error is not sufficient to warrant the intervention of this Court. The officer gave many other valid reasons for her decision and her conclusion regarding the applicant's return from Australia in July 1997 did not have a significant impact on the conclusion since the other reasons are enough to support the officer's conclusion.
[38] Regarding the officer's conclusion that the applicants had no fear of persecution because the applicant was able to move freely about the city in October and November 1998, because she went to three embassies to get visas for the family, the applicant submits that trips to embassies to get visas do not constitute moving freely about the city, since they were short, direct trips to arrange departure, not a stroll along the boulevards. Furthermore, the applicants had moved out of their home and neighbourhood. No issue was ever made of internal flight.
[39] The applicant submits that the officer's conclusion, that her story falls like a house of cards because she obtained her United Kingdom visa on October 8, before her decision to leave the country, ignores the evidence of the series of incidents which led her to leave her country.
[40] The applicant submits that if it were not for the events from February 1998 to October 7, 1998, then the obtaining of the United Kingdom visas on October 8, 1998, before the events of October 10, 1998, would appear inconsistent with the stated basis for the fear of persecution. However, if one considers those events, especially the fact that the prior events had led the family to leave their home the day before the United Kingdom visas were obtained, then there is no inconsistency.
[41] The respondent contends that the applicant is challenging some of the conclusions made by the Board, even though the decision has already been brought before the Court unsuccessfully. Furthermore, the applicant did not challenge the conclusions of facts made by the Board.
[42] I agree with the respondent that the applicant is challenging some of the Board's conclusions. In any event, I believe that the officer's conclusion on the applicant's intentions is consistent with the applicant's evidence. The evidence is that the events of October 10, 1998 prompted the applicant's decision to leave the country. This contradicts the fact that the applicant and her family obtained their United Kingdom visas on October 8, 1998. Therefore, the officer's conclusion that this demonstrates that the applicant had the intention of leaving before the events on October 10, 1999 stands.
[43] I am satisfied that the officer considered all the evidence and that she did not err in rending her decision. Therefore, this judicial review application is dismissed.
[44] Counsel for the applicant suggested a question for certification:
What is the standard of review of a decision on "PDRCC" class?
[45] Counsel for the respondent opposed that question on the basis that this question has already been answered by decisions of this Court, and also on the fact that the officer has not made any error.
[46] In my view, this question is not a question of general importance and I agree with counsel for the respondent that this question has already been answered. Therefore, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 10, 2001
" | "" |
"2001 FCT 1007" | "" | "FC" | 2,001 | "Tarroja v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-12" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/41292/index.do" | "2022-08-18" | "Tarroja v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-12
Neutral citation
2001 FCT 1007
File numbers
IMM-663-01
Decision Content
Date: 20010912
Docket: IMM-663-01
Neutral citation: 2001 FCT 1007
BETWEEN:
MARIA CONCEPCION TARROJA
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. BACKGROUND
[1] This judicial review application by Maria Conception Tarroja (the "applicant"), a citizen of the Philippines, concerns the refusal letter she received on January 31, 2001, after she had been interviewed by a visa officer in respect to her application for permanent residence in Canada, dated August 24, 1998, in the independent category with her designated intended occupation of "Financial Analyst or Investment Analyst".
[2] Her application for permanent residence was forwarded to the Canadian Embassy in the Philippines by Calgary immigration consultants on August 29, 1998. In their covering letter, the immigration consultants pointed to NOC 1112.0 Financial and Investment Analyst but added "it turned out that there are alternate occupations to her work experience and skills, i.e. Accountant NOC 1111.2 and Financial Manager NOC 1111.0".
[3] The visa officer's refusal letter states that the applicant was assessed in the occupation of Program Officer NOC 4164 and lists the units she was awarded for that occupation, namely, 68 units, short by 2 units of the required 70 units.
[4] The visa officer's refusal letter also states the applicant was also assessed as Financial Analyst, NOC 1112.0. The visa officer, in connection with that application, writes:
Your application could not be approved on this basis because I am not satisfied that your duties match those described in NOC.
[5] For this requested occupation the visa officer's letter did not set out the number of units for each factor.
B. THE GROUNDS OF CHALLENGE
[6] The applicant's attack is three-fold urging:
(1) the applicant was not in fact assessed as a Financial Analyst relying on Justice Campbell's decision in Khalaque v. Canada (Minister of Citizenship and Immigration) 9 Imm.L.R. (3d) 53;
(2) the visa officer should not have assessed the applicant as a Program Officer (NOC 2.4164) which was not an appropriate alternate occupation flowing from or inherent with her educational qualifications and her actual work experience and relies on Justice Rouleau's decision in Moksud v. Canada (Minister of Citizenship and Immigration) (2001),12 Imm. L.R. (3d) 151. The applicant says the more appropriate classification was that of Economic Development Officer (NOC 4163); and
(3) the visa officer double counted the personal suitability factor with that of the occupational factor relying on Justice Hugessen's decision in B'Ghiel v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 198.
C. EVIDENCE ON THIS JUDICIAL REVIEW
[7] Both the applicant and the visa officer filed affidavits but there were no cross-examinations.
[8] The applicant's affidavit concentrated on her educational background and work experience: (1) a 1974 Bachelor's degree of Science in Business Administration with a major in accounting plus several special skills courses; (2) her work from 1979 to 1983 as a Financial Specialist at the Philippine Invention Development Institute; from 1983 to 1986 as a Business Development Officer starting as a Financial Analyst with the KKK - Processing Centre Authority under the Driver's National Program Management Office and from 1986 to April 1996 as Account Manager and Division Chief III, Financial Intermediation Group at the Livelihood Corporation, a Philippine government-owned corporation where she managed the operations of five projects involving project feasibility preparation and project implementation and management; and (3) she states in paragraph 5 she should have been assessed as a Financial Manager (NOC 1111.0).
[9] She also referred to a letter dated January 24, 2001 which she sent to the visa officer after the interview in which she reiterated her experience as a Financial Analyst.
[10] The visa officer's affidavit made these points:
(1) She confirmed her CAIPS notes and her refusal letter that the applicant was not approved as a Financial Analyst NOC 1112.0 because she was not satisfied that the applicant had performed the requisite duties set out in the NOC. The applicant had not collected financial and investment information about companies, stocks and bonds and other investments using daily stock and bond reports, economic forecasts, trading volumes, etc., nor did she examine and analyse financial and investment information including company profiles.
(2) The applicant agreed with her that the description of a financial analyst as it was read aloud to her from the NOC did not reflect her experience.
(3) She informed the applicant that she would be assessed as a Program Officer under NOC 4164.1 and that the applicant agreed with her that the duties she performed reflected those outlined as a Program Officer which included conducting research and implementing or administering programs in areas such as international development.
(4) As to why the applicant was awarded only 3 points for personal suitability, the visa officer explained that the applicant, by her own admission, had not conducted any inquiries regarding employment opportunities in Canada in her intended occupation or in any other occupation. She was unable to describe how she would seek employment and that she was relying solely on her relatives for information, funds and directions. The visa officer added she queried the applicant about how her skills were transferable to Canada, the applicant responded she did not know and that she was quite lost because she did not know anything about employment in Canada.
CONCLUSION
[11] I do not see how this Court can intervene in this application for judicial review in the light of the unqualified statements made by the visa officer in her affidavit, which were not contradicted by the applicant and upon which there was no cross-examination.
[12] The visa officer said that during the interview she explored with the applicant her work experience in her designated occupation of Financial Analyst and that the applicant agreed her work experience did not fit as a Financial Analyst.
[13] In terms of the alternative occupations, the visa officer stated the applicant agreed with her the description in the NOC of Program Officer fits the duties she had performed in the work place.
[14] These fundamental facts are unique and special to the applicant's application for permanent residence. As such, they constitute particular circumstances which distinguish what happened here from Khalaque and Moksud, supra.
[15] As to the final argument of double counting with reliance on B'Ghiel, supra, I agree with counsel for the respondent there was no evidence of double counting and that this case fits within the permissible limits established by Justice Pinard in Abbasi v. Canada (M.C.I.) (1999), 167 F.T.R. 154.
DISPOSITION
[16] For all of these reasons, this judicial review application is dismissed. No certified question arises.
J U D G E
OTTAWA, ONTARIO
September 12, 2001
" | "" |
"2001 FCT 1008" | "" | "FC" | 2,001 | "Dias v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-10" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/48922/index.do" | "2022-08-18" | "Dias v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-10
Neutral citation
2001 FCT 1008
File numbers
IMM-2593-01
Decision Content
Date: 20010910
Docket: IMM-2593-01
Neutral citation: 2001 FCT 1008
Toronto, Ontario, Monday, the 10th day of September, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
ERNESTO DIAS
MARISA SANDRA SOSA DIAS
KEILA JAEL DIAS
DARIO ANDRES DIAS
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The motion before me seeks leave to file a Supplementary Applicant's Record. The day after the Applicant's Record was filed further evidence (which had been requested from the Tribunal in good time) came to hand. The Applicant tried to file it as Supplementary Record it was refused by the Registry as being late.
[2] The Applicant then did nothing until he tried to file it presumably as a reply. There is no provision for a reply evidence and the document in any event is styled as a Supplementary Applicant's Record. The document was refused by the Registry. Now, a motion is brought for leave to file a Supplementary Application Record. The result of this conduct by the Applicant is that the Respondent has made his submissions without the Supplementary information being on file. Had the Applicant moved at the earliest opportunity the Respondent could have responded to it in her original memorandum. In the circumstances, I believe justice requires that the Supplementary Applicant's Record be allowed to be filed and further that the Respondent should have 30 days more to file any supplementary or replacement memorandum she may be advised to file.
ORDER
1. The Applicant's Supplementary Record may be filed before September 14th, 2001 at 11:00 a.m. The Respondent may file within the 30 days thereafter a supplementary or replacement memorandum and supporting materials.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 10, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2593-01
STYLE OF CAUSE: ERNESTO DIAS
MARISA SANDRA SOSA DIAS
KEILA JAEL DIAS
DARIO ANDRES DIAS
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES, 1998.
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: MONDAY, SEPTEMBER 10, 2001
WRITTEN SUBMISSIONS BY: Mr. Peter Ivanyi
For the Applicants
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: ROCHON GENOVA
Barristers & Solicitors
121 Richmond Street West, Suite 903
Toronto, Ontario
M5H 2K1
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010910
Docket: IMM-2593-01
BETWEEN:
ERNESTO DIAS
MARISA SANDRA SOSA DIAS
KEILA JAEL DIAS
DARIO ANDRES DIAS
Applicants
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
" | "" |
"2001 FCT 1009" | "" | "FC" | 2,001 | "Riveros v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-11" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/45927/index.do" | "2022-08-18" | "Riveros v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-11
Neutral citation
2001 FCT 1009
File numbers
IMM-6517-00
Decision Content
Date: 20010911
Docket: IMM-6517-00
Neutral Citation: 2001 FCT 1009
BETWEEN:
MAXIMO ANDRES FEBRES RIVEROS
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from the decision by the Refugee Division (hereinafter "the tribunal") on November 28, 2000 that the plaintiff is not a Convention refugee.
FACTS
[2] The plaintiff was born on April 15, 1951 and is a Peruvian citizen. The plaintiff alleged that he feared being persecuted by the Peruvian police and by the Shining Path terrorists for alleged political opinions and his membership in the particular social group of union members.
[3] In his personal information form ("PIF"), the plaintiff indicated that he worked for the Frio Lux companies from February 1985 onwards as a refrigeration technician.
[4] In early February 1998, and for the period 1998-1999, the plaintiff said he was elected to the management of the only union in the business as defence secretary.
[5] The plaintiff further maintained that the union appointed him as delegate to represent the workers on the co-ordinating committee of the workers' central - general confederation of workers of Peru.
[6] On July 16, 1998 there was widespread civic mobilization throughout the nation in Peru to react to the socio-economic program introduced by the Fujimori government.
[7] At about 6:00 p.m. the plaintiff said he was arrested by the Lima anti-riot police and taken together with ten other union members to the Lima prefecture.
[8] During his stay at the police station the plaintiff said he was described as a political agitator, a rebel and a terrorist sympathizer. The plaintiff alleged that he was released by the police at around midnight.
[9] On April 8, 1999 the plaintiff and Harold Ovalle, also a delegate to the workers' central, were in the premises of the Coldex company, which had 400 technical workers and employees.
[10] The purpose of the plaintiff's presence was to support Mr. Ovalle in their appeal to the workers to join in a national strike to protest government abuses.
[11] When they came out at around 8:00 p.m. the plaintiff and Mr. Ovalle were intercepted by four men who grabbed the plaintiff and his colleague and forced them to get into their pickup.
[12] The plaintiff and his colleague were taken to a house in a slum in the Pampilla area. One of the men identified himself as the new fighters for the Communist Party, Shining Path. He explained that he wanted the plaintiff and Mr. Ovalle to present their party's ideology to the working class.
[13] The man took out a document and ordered Mr. Ovalle to take it. The document then dropped from Mr. Ovalle's hands. At that point, the man talking to them took out a firearm and dealt a terrible blow to Mr. Ovalle's head. The injury began to bleed freely and Mr. Ovalle lost consciousness and collapsed to the ground. The man then told the plaintiff that this was only a warning.
[14] The man also explained to the plaintiff that his organization was aware of all their movements and their information circuit throughout the factories in the capital. He also indicated that the plaintiff and Mr. Ovalle were going to be watched by spies for the organization to ensure that they carried out the orders. He went on to threaten the plaintiff with reprisals if he failed to do so.
[15] At around 10:30 p.m. the plaintiff and Mr. Ovalle were left near the highway leading to Pampilla. The plaintiff and Mr. Ovalle took a taxi and went to the polyclinic social security hospital in Callao.
[16] The plaintiff telephoned the office of the general confederation of workers of Peru to tell them about the situation. The head of the confederation united front advised the plaintiff to go to the national anti-terrorism bureau to file a complaint and report the facts.
[17] Later, the plaintiff and Mr. Ovalle went to the national anti-terrorism bureau with the document given them by the Shining Path representative. In this handwritten document it spoke of seeking the support of the working class to reorganize and restructure the Peruvian Communist Party and recruiting new supporters for the revolutionary struggle against the Fujimori government.
[18] At the national anti-terrorism bureau, where the plaintiff and his colleague remained for four hours, police officers took notes and wrote up their statements. The plaintiff and Mr. Ovalle also looked through photos of terrorists so as to identify those who had kidnapped and attacked them. They also asked for police protection.
[19] For the next three weeks, on information tours to unionized factories in the confederation, they were given a police escort for their movements. No incidents occurred in these 21 days and then the police protection was withdrawn. The National Police of Peru explained that it lacked the staff to continue providing an escort.
[20] At about 8:00 p.m. on May 6, 1999 a group of seven persons burst violently into the union premises at the record factory where the plaintiff was together with Mr. Ovalle.
[21] The group was armed and five men pointed their weapons at the persons attending the meeting. The two women in the group went around the benches distributing pamphlets.
[22] Once the pamphlets were distributed, the men ordered the plaintiff and Mr. Ovalle to follow them and not to resist. Mr. Ovalle refused to obey and one of the members pushed him to the ground and fired a shot into his left leg.
[23] The shot alerted the watchman, who set off the alarm siren, and this caused the terrorists to flee.
[24] Officers of the national anti-terrorism bureau arrived shortly afterwards. They questioned them and examined the pamphlets distributed by the terrorists.
[25] On May 7, 1999 the national anti-terrorism bureau informed the plaintiff that three men and one woman had been arrested using roadblocks. The plaintiff was asked to attend a lineup of suspects. During this procedure the plaintiff had doubts and passed them on to the national anti-terrorism bureau officers. The plaintiff did not want innocent people to be unfairly punished.
[26] On May 11, 1999 Mr. Ovalle formally recognized one of the men and the woman as perpetrators of the attack.
[27] The national anti-terrorism bureau officers told the plaintiff and Mr. Ovalle that they would be called as witnesses at the terrorists' trial.
[28] On May 25, 1999, at about 12:30 a.m., the plaintiff heard the noise of an engine under his windows. When he looked out he saw a dark car parked with all its lights off. The plaintiff found this suspicious and was very frightened.
[29] The plaintiff went immediately to the back of the house and climbed the wall of the small adjoining park. When he got some distance away the plaintiff glimpsed a silhouette on the roof and a shot was fired. The plaintiff ran past some three houses along the park. The plaintiff managed to get to a neighbour's house and call the police.
[30] The plaintiff was taken to the Condevilla police station and was then transferred to the national anti-terrorism bureau, where he asked for personal guarantees from fear of an attempt on his life. His request was immediately denied without explanation.
[31] At 6:00 a.m. on May 25, 1999 the plaintiff telephoned Mr. Ovalle at his residence. One of Mr. Ovalle's family members explained to the plaintiff that Mr. Ovalle had been killed the night before by Shining Path terrorists. The plaintiff left his residence and went to the national anti-terrorism bureau, where he saw an officer.
[32] The plaintiff explained to the officer that he wanted to go into hiding for a time. However, the officer insisted that the plaintiff give him an exact and complete address so he could send the plaintiff his summonses as a witness at the trial.
[33] The plaintiff explained that he did not know where he would be hiding. The officer then became angry and his tone became threatening. The officer then left and when he came back placed the plaintiff's file in front of him. The officer explained to the plaintiff that the file indicated the plaintiff had been noted on July 16, 1998 as a political agitator and a person suspected of having ties to subversives. The plaintiff felt cornered and gave an exact address, that of a neighbour, as in the event of refusal the officer threatened that he would keep the plaintiff in detention until the trial was held.
[34] When he left the national anti-terrorism bureau the plaintiff decided to hide until he could leave the country so as to finally elude the Shining Path murderers and the problems with the national anti-terrorism bureau.
POINT AT ISSUE
[35] Did the tribunal err in assessing the plaintiff's credibility and make a decision that did not take the evidence into account?
ANALYSIS
[36] Did the tribunal err in assessing the plaintiff's credibility and make a decision that did not take the evidence into account?
[37] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated, regarding the standard of review applicable to a tribunal's findings of credibility and plausibility:
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[38] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), Lutfy J. indicated the standard of review for a finding by a tribunal on the credibility of testimony:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[footnotes omitted.]
[39] The plaintiff in the case at bar alleged that the tribunal unreasonably concluded that he had provided no explanation about his failure to make a claim in the countries he passed through before arriving in Canada. The plaintiff indicated that at the hearing he stated that the departure arrangements were made by an alien smuggler with a final destination, namely Canada.
[40] In this connection, the tribunal concluded as follows as p. 1 of its decision:
[TRANSLATION]
He said he left his country on June 1, 1999, travelled through nine countries and finally came to the Canada-U.S. border on July 14, 1999. Seven of the countries where he stayed are signatories to the Convention or the Protocol. He never asked for refugee status in any of them and did not explain his omission at the hearing. Such an omission is not consistent with the conduct of a real refugee.
[41] At p. 68 of the hearing transcript the plaintiff testified as follows, regarding the question of his route from Peru to Canada:
[TRANSLATION]
Q. You left your country in what way?
A. By land and with no documents.
- You said you had the help of a facilitator.
Q. What did he do for you, or what did she do for you?
A. A facilitator who looked for an alien smuggler.
. . . . .
A. And we beg . . . began our long journey till we arrived with false documents. So, they took photos and they . . . they gave documents, passports, and then we began.
[42] Then, at p. 81:
[TRANSLATION]
Q. How much did that cost you, this . . . journey and the alien smuggler and everything?
A. First, being here in Canada, I knew the following. They made an agreement that the time would be 15 days. From my country to Canada, 15 days. They agreed on a price. However, because of serious problems that exist in Central America, we had to stay two or three days in some countries. This caused the coyote additional expense, because we were delayed 44 days. He charged this to my brother.
My brother . . . Of course my brother did not object to paying it, because I arrived with . . . alive.
[43] The plaintiff's testimony at the hearing does not explain why he did not claim refugee status in the other countries through which he passed. He only explained that his brother had made an agreement for the plaintiff to be brought to Canada. The agreement concluded did not prevent the plaintiff from claiming refugee status in the other countries. In my view, the tribunal did not err in concluded that the plaintiff had not explained his failure to claim refugee status in the other countries through which he passed. In any event, this conclusion was not decisive for the tribunal. Accordingly, I will only intervene if the tribunal's other conclusions are not reasonable.
[44] On the validity of the service record and the tribunal's conclusion that the photo of the plaintiff could not date back 28 years, and that the plaintiff's explanations were not acceptable, the plaintiff maintained that the tribunal was not an expert on the age of an individual in a photograph.
[45] The plaintiff also explained that he had never said the service record was recently updated. Moreover, the decrepit condition of the record clearly contradicted any suggestion that a recent update had been made. The plaintiff maintained that the tribunal's conclusion was unreasonable.
[46] At the hearing, and as appears from the transcript at p. 72, there was the following exchange about the service record:
[TRANSLATION]
BY THE PRESIDING MEMBER (to the person concerned)
Q. Your service record was made . . . was issued when? Do you know?
A. No, because this . . . it's not the original, it's a duplicate, because I had to get it out, because even the photo goes back many, many years.
- I was going to ask you that.
Q. When was the duplicate made?
A. I . . . I could not say.
- Because the photo is there, you would say it was taken last week, because it looks so much like you.
And yet, it says here that . . .
BY PRESIDING MEMBER (to interpreter)
Q. What does fecha de expedition mean?
A. It means date . . .
BY REFUGEE CLAIMS OFFICER (to presiding member)
- Of issue.
. . . . .
BY PRESIDING MEMBER (to person concerned)
- It is marked June 16, 72. You have not got any older in 28 years.
A. 72 or 92?
- 72. You are giving me a document which on its face states that it was issued in 72, with a photo which appears to be a very recent one of you. Clearly there is a problem with this document, right?
[47] The plaintiff testified that the record was a duplicate. However, he did not testify that the record was recently updated. I do not believe the tribunal could conclude that the record was recently updated in view of the plaintiff's testimony, since the latter even testified that the photograph [TRANSLATION] "goes back many, many years".
[48] The fact remains, however, that the issue date of the record was 1972 and the tribunal considered that the photograph of the plaintiff contained in it looked like a recent photograph of the plaintiff, since it showed the plaintiff as he was at the hearing. The tribunal did not accept that the photograph was taken 28 years before, when the plaintiff was 21 years old.
[49] Section 68(3) of the Immigration Act indicates:
68 (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
68 (3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision.
[50] Counsel for the plaintiff admitted to the tribunal that the photograph on the record dated 1972 was a recent one, which was clearly apparent.
[51] The tribunal did not need to refer to an expert to determine the plaintiff's age; moreover that was not the question.
[52] The question raised by the tribunal was primarily about the fact that the plaintiff appeared unable to provide adequate explanations regarding these documents, namely Exhibits P-10, P-12 and P-13.
[53] In Ghazvini v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1550 (F.C.T.D.), Richard J. (as he then was) indicated:
Counsel for the applicant vigorously challenged the tribunal's failure to give any weight to the arrest warrant submitted by the applicant. The Board had this to say in its reasons:
In regard to the copy of the arrest warrant the panel does not give it any weight. We see it as self-serving. Evidence such as this is easily concocted. Furthermore, the original was not made available to the panel.
The tribunal made a correct finding that the original was not made available to the panel. The applicant claims that he was provided with a copy of the warrant after he escaped and that it was given to his father-in-law by a Kurdish worker. Counsel for the applicant submits that it is patently unreasonable for the tribunal to see this document as self-serving and further submits that the tribunal did not make a clear finding as to the authenticity of this document. In my opinion, in the context of the tribunal's decision, it is clear that when the tribunal says that it gives the document no weight it is because it considers it to be false. Both the statement that the document was to be given no weight and that it was self-serving followed the tribunal's statement that it found the applicant not to be credible or trustworthy. The Board in its decision identified a number of inconsistencies and implausibilities in the evidence of the applicant as well as finding that the applicant had great difficulty in clarifying his answers to the most basic questions.
[54] It appears from this passage that Richard J. considered that the tribunal could conclude that a document was a forgery without having to seek expertise because of the tribunal's conclusion that the plaintiff in that case was not credible.
[55] In my opinion, the tribunal's reasons in support of its conclusion that the documents were fraudulent is reasonable and I do not think it was necessary to seek an analysis by an expert, since the problems with the documents were apparent on their face and were obvious.
[56] As to the tribunal's conclusion regarding the time of Mr. Ovalle's death, the plaintiff explained that he made statements about Mr. Ovalle's death based on the information he had received. Further, he filed the death certificate as Exhibit P-6. Also, Exhibit P-12 is the police report prepared by a police officer. The plaintiff had no involvement in the preparation of the document.
[57] The tribunal properly noted that the documents contradicted each other and that they contradicted the testimony of the plaintiff, who maintained that Mr. Ovalle died during the night. The tribunal had already concluded that document P-12 was not credible and was justified in concluding that the doubtful documents introduced contradictions into the plaintiff's evidence. I cannot conclude that the tribunal erred in making this finding.
[58] The plaintiff contended, with regard to the end of his refrigeration studies, that the tribunal erred when it said that the plaintiff had provided no explanations, since the plaintiff explained that these were courses for several weeks and that diplomas were received after each course.
[59] I have carefully reviewed the hearing transcript and did not find the passage in which the plaintiff said he explained the nature of the courses he took. In any case, the fact remains that the plaintiff's diplomas indicated that he finished his courses on April 2, 1976 and October 2, 1976, whereas he said in his PIF that he concluded his studies in November 1976. The tribunal's finding that the plaintiff had not explained this difference therefore reflects the evidence.
[60] The plaintiff also alleged that the tribunal erred in concluding that there was a contradiction between the fact of being an employee for Frio Lux and a member of the Frio Lux employees' union.
[61] It should be noted that the tribunal found no contradiction between being an employee for Frio Lux and being a member of the Frio Lux employees' union, but the tribunal did find, and quite properly, that there was a contradiction between working as a refrigeration technician for the Frio Lux company when Exhibit P-11 indicated that the plaintiff had been elected a member of the Frio Lux's illuminated signs union. Based on the evidence presented, the tribunal's conclusion was justified.
[62] The plaintiff further maintained that the tribunal erred in assessing the facts entered in evidence and did not pay attention to the chronology of events when it concluded that the plaintiff was not credible, because the police provided protection at one point and later allegedly refused it. The plaintiff indicated that the hardening of the police attitude was due to the fact that he refused to sign false testimony.
[63] In my opinion, the tribunal's conclusion was not justified in view of the plaintiff's testimony. The tribunal indicated that the plaintiff testified that after Ovalle's death in May 1999 he was refused protection because the police felt he was a political agitator, since he had been arrested at a union demonstration in July 1998.
[64] In fact the plaintiff did not testify that he was denied protection because he was a political agitator. At p. 62, he testified that on the night Mr. Ovalle died he went to the national anti-terrorism bureau to claim personal protection. He also testified that this was denied and that no explanation was given.
[65] A little further on, at p. 65, the plaintiff testified that after learning of Mr. Ovalle's death he went directly to the national anti-terrorism bureau to once again seek personal protection. The plaintiff did not testify about the refusal by the national anti-terrorism bureau to provide him with personal protection after Mr. Ovalle died.
[66] The plaintiff did testify that he told the national anti-terrorism bureau that he was going to go into hiding. It was when the plaintiff did not want to give a specific address for the place where he intended to hide that the police officer took out his file about the union demonstration in July 1998. It appeared from the plaintiff's testimony that the police officer took a harsher tone and referred to the plaintiff's file when the question arose of the summons to be sent to him for the court proceeding against the Shining Path.
[67] In my view, the tribunal's conclusion on this point was neither reasonable nor supported by the evidence.
[68] The plaintiff also testified that the tribunal erred in assessing the facts about the actions of the Shining Path and that the tribunal could not blame the plaintiff for the actions of the Shining Path.
[69] It is the tribunal's function to assess the credibility of testimony, and to do so it can rely on documentary evidence. In the case at bar the tribunal concluded that it was not credible that the Shining Path, which according to the documentary evidence is a well-organized entity, should act in the way described by the plaintiff. In the tribunal's opinion the plaintiff was making the Shining Path look like stage guerillas, and the Shining Path has too much fighting experience and is too well-organized to act in this way. The tribunal did not blame the plaintiff for the actions of the Shining Path. The tribunal simply did not find the plaintiff's explanations credible based on the evidence. In this regard, the tribunal's conclusion was justified and reasonable.
[70] On the question of whether the attackers were masked in the kidnapping of April 8, 1999, the plaintiff maintained that he was misled by the tribunal when the tribunal was bombarding the plaintiff with questions in order to unsettle him and undermine his credibility.
[71] In the plaintiff's submission, the tone used by the tribunal was intended to unsettle him and make him say what he had not said. Further, counsel for the plaintiff blamed the tribunal for acting in this way.
[72] In this regard, the following exchange took place at the hearing (p. 27 of the transcript):
[TRANSLATION]
BY REFUGEE CLAIMS OFFICER (to person concerned)
- And people suddenly appeared with a black pickup, forcing you to get into the vehicle.
A. Yes.
Q. Were the faces of these persons covered?
A. No, they had a muffler, as they are called.
Q. All of them?
A. Except the person driving, who was a woman.
and then at p. 31 of the transcript:
[TRANSLATION]
BY PRESIDING MEMBER (to person concerned)
Q. Were the men always masked?
A. Yes.
Q. All the time you were with them, they were always masked?
A. Yes, they were masked.
[73] At p. 37 of the transcript, the plaintiff explained:
[TRANSLATION]
BY REFUGEE CLAIMS OFFICER (to person concerned)
- OK, so we are in Dincote's office.
Q. What . . . what did you do there? You have made your statement, but what happened?
A. There was a group of police officers, they were going to ask us questions . . .
- break in tape-
BY PRESIDING MEMBER (to person concerned)
- Yes, continue.
A. So, they asked us to identify the terrorists, and I told them that we could not see their faces.
BY REFUGEE CLAIMS OFFICER (to person concerned)
- But they were, because you then said, we have checked the record, I imagine, people who were wanted. This suggests you could at least see them so you could . . .
Q. Otherwise, once you could not recognize them, what would be the use of checking this document?
A. But their functions, they told us, you can immediately recognize someone. Well, you cannot recognize anyone.
[74] In fact, the tribunal only asked two questions, and it was the Refugee Claims Officer who asked the other questions. The preceding exchange does not indicate that the questions were designed to unsettle the plaintiff, but shows that the tribunal and the Refugee Claims officer were trying to clarify the story.
[75] In this regard, the tribunal considered that the plaintiff had expanded his testimony with material that was not in his written account, which even made him contradict himself. The tribunal noted that the written account did not mention masked kidnappers and described a lengthy search in the photo album of terrorists. The plaintiff's written account did not refer to masked kidnappers. I do not feel that the tribunal erred in concluding that the plaintiff expanded his story at the hearing. The plaintiff himself gave the impression in his PIF that the kidnappers were not masked.
[76] In Basseghi v. M.E.I., [1994] F.C.J. No. 1867 (F.C.T.D.), Teitelbaum J. indicated:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answer should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[77] In my opinion, in view of the plaintiff's evidence the tribunal did not err in concluding as it did.
[78] Finally, the plaintiff argued that the tribunal had acted maliciously towards the plaintiff so as to undermine his credibility. The plaintiff explained that the conclusion that there was no credible basis entailed serious consequences since, under s. 49(1)(f) of the Immigration Act, the stay of execution of a removal order to which a plaintiff is subject will be for a period of only seven days.
[79] The plaintiff argued that it was unreasonable to conclude that there was no trustworthy evidence. The plaintiff alleged that he presented evidence of a credible basis for his claim. All the points raised by the tribunal were fallacious and unreasonable.
[80] Section 69.1(9.1) of the Immigration Act provides:
(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.
(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.
[81] In Foyet v. Canada (M.C.I.), [2000] F.C.J. No. 1591, Denault J. indicated:
Applying these principles to this case, the panel found that, having determined that the applicant was not credible, it could reject his claim and subsequently make a finding that the applicant had no credible basis for his claim.
In my view, the panel thereby erred in law by giving subsection 69.1(9.1) an interpretation no longer justified by Sheikh, as that case was decided under a completely different legislative framework.
In Sheikh, the Federal Court of Appeal was dealing with part of subsection 46.01(6) of the Immigration Act at a time when refugee determination was a two-stage process. The Court held that a first-level panel "errs in law in applying the test mandated for a full Refugee Division hearing rather than the lower threshold provided for a level one hearing."
An overly broad interpretation of Sheikh may lead to results far beyond the scope of the case, which, we note, was decided in 1990, before the 1992 amendments to the Immigration Act. A contextual analysis of the decision is therefore required. First, in that case, MacGuigan J.A. himself qualified the comments quoted above, which the panel failed to distinguish in adopting them, when he stated:
It is the first-level panel which has to be "of the opinion that there is any credible or trustworthy evidence" . . . It is the first-level tribunal which must base its decision on evidence which in the circumstances of the case is considered credible or trustworthy, evidently by it.
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant . . .
MacGuigan J.A. therefore distinguished between subjective evidence (testimony) and objective evidence (documentary evidence).
. . . . .
In my view, what Sheikh tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In this case, I believe that the panel erred in law by applying a general statement from Sheikh to a case which should have been dealt with under the new legislative framework, and the panel did so without even conducting the analysis recommended in that decision.
In my view, the new subsection 69.1 (9.1) of the Immigration Act also requires an analysis of all the evidence, both objective and subjective . . .
In Mahanandan, the Federal Court of Appeal as well affirmed that where documentary evidence which could affect the Board's appreciation of the claim is received in evidence at a hearing, the Board is required to indicate the impact that such evidence had upon the claim. Chief Justice Isaac stated:
Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
In my view, before making a no credible basis finding, the panel must always consider all the evidence. A broad interpretation of Sheikh is not consistent with subsection 69.1(9.1) of the Immigration Act.
Certainly, the panel need not expressly evaluate each piece of evidence in its reasons: however, given the significance of the provision at issue which, we would point out, was enacted some years after Sheikh, the context in which Sheikh was decided must be taken into account. In my view, a panel should exercise caution in following Sheikh when it decides to refer to that decision in making a no credible basis finding. The fact that a panel finds an applicant's testimony not credible does not, de facto, bring subsection 69.1(9.1) of the Immigration Act into play. As Madam Justice Tremblay-Lamer stated in Seevaratnam:
In my opinion, the Board failed to consider all of the evidence before it and simply denied the Applicant's claim because it did not find her credible. In the circumstances of this case, there was still evidence remaining which could have affected the assessment of the claim. Therefore this evidence should have been expressly assessed.
Therefore, in every case, a thorough analysis must be carried out to establish whether the documentary evidence is relevant. If it is, the panel is required to state express reasons, having regard to the objective evidence, to explain why subsection 69.1(9.1) of the Immigration Act is being applied. . . .
In this case, the panel found that the applicant failed to establish a credible basis for his claim, in accordance with subsection 69.1(9.1), after concluding that the applicant had adduced no credible or trustworthy evidence at the hearing on which it could have determined that the applicant was a Convention refugee.
In order to make such a finding, the Refugee Division had an obligation to assess all the evidence and to expressly state the reasons that led to its no credible basis finding. By failing to expressly assess all the evidence, both subjective and objective, and by focussing exclusively on the applicant's testimony, the panel committed an error that is subject to judicial review. Accordingly, its decision regarding the application of subsection 69.1(9.1) of the Immigration Act must be set aside.
[82] In the case at bar the evidence as a whole, both objective and subjective, was analyzed by the tribunal and the tribunal expressly indicated the reasons which led it to conclude that there was no credible basis. The tribunal found that the documentary evidence supplied by the plaintiff was not credible and gave detailed reasons for this conclusion. The tribunal also found that the plaintiff's testimony was not credible in light of the independent and credible documentary evidence. In my opinion, the tribunal was entitled after a detailed analysis of both the testimonial and documentary evidence to conclude that the plaintiff's claim lacked a credible basis.
[83] Although I indicated that the tribunal was not justified in concluding that the national anti-terrorism bureau had refused to protect the plaintiff on account of his arrest at the union demonstration in July 1998, in view of the tribunal's other reasons which amply support the conclusion that the plaintiff was not credible, I consider that there is no basis for intervention by the Court in the case at bar. The application for judicial review is accordingly dismissed.
[84] None of the counsel submitted questions for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
COURT No.: IMM-6517-00
DOCUMENT(S) RECEIVED:
X Reasons for order and order
Order
X Main file
X Appendix B
FROM: PIERRE BLAIS J.
DATE: _________________________
TIME: _________________________
REGISTRY OFFICER: _________________________
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6517-00
STYLE OF CAUSE: MAXIMOS ANDRES FEBRES RIVEROS v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: August 2, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: September 11, 2001
APPEARANCES:
Odette Desjardins FOR THE PLAINTIFF
Greg Moore FOR THE DEFENDANT
SOLICITORS OF RECORD:
Odette Desjardins FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
" | "" |
"2001 FCT 101" | "" | "FC" | 2,001 | "Stanculescu v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-02-20" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/47044/index.do" | "2022-08-18" | "Stanculescu v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-02-20
Neutral citation
2001 FCT 101
File numbers
IMM-3215-00
Decision Content
Date: 20010220
Docket: IMM-3215-00
Neutral Citation: 2001 FCT 101
BETWEEN:
MARIAN STANCULESCU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] In the present case, the Applicant is Roma from Romania who claims a well-founded fear of persecution by state authorities. In rejecting the Applicant's claim for refugee status, the CRDD made the following findings:
Documentary evidence [Exhibit R-2, Country Reports on Human Rights Practices for 1999, U.S. Department of State, February 2000, at page 16] deals with discrimination of National/Racial/Ethnic minorities. It states, among other things that, "No cases of ethnically-motivated violence against Roma people were reported." The panel finds that being Roma does not in itself support a claim for Convention refugee status. The claimant has not adduced sufficient credible evidence on which to find him to be a Convention refugee. There is insufficient credible evidence before the panel to indicate that there is more than a reasonable chance that he will be persecuted if he were to return to Romania today.1
Read with the whole decision, I find this statement discloses three reviewable errors.
[2] First, the "documentary evidence" quoted, is one sentence from the following paragraph:
The Romani population, officially estimated by the Government at approximately 400,000, is estimated by the European Commission to number between 1.1 and 1.5 million. No cases of ethnically-motivated violence against Roma people were reported [to the Department for the Protection of National Minorities].2 However, Romani groups complain of routine police brutality, prejudice, and racial harassment at the local level. Although those who were involved in 1993 incidents in Hadareni, in which three Romani persons died in a house burning, were sentenced to terms in prison in 1998, the court rulings have not become final as yet because of appeals. The Romanian daily Ziua reported on September 7 that the Office for the Fund for Social Security and Health in Iasi banned from the Iasi county hospital Roma who cannot afford to pay for their medical treatment and cannot prove that they have medical insurance provided by the State. An NGO, Liga Pro Europa, sent a letter expressing concern to the Department for the Protection of National Minorities on September 2. In response, the Department opened an investigation on October 7 and requested he Ministry of Health to do the same. As of November 29, the ban on Roma had not been withdrawn. Some steps have been taken toward establishing an institutional framework to improve the conditions of the Roma, but in practice little progress has been made. The Department for the Protection of National Minorities and a working roup of Roma associations set up by the Roma community signed an agreement for drafting a strategy for the protection of the Roma minority. Meanwhile, the Romani population continues to be subject to societal discrimination.
[Emphasis added]
[3] In my opinion, the only thing that the one sentence quoted proves is that there were no reports of ethnically motivated violence against Roma made to the Department for the Protection of National Minorities during a certain time period. The balance of the paragraph proves that discrimination exists in Romania against Roma, whether or not it is being reported. In addition, I find that the record before the CRDD contains ample documentary evidence to substantiate this fact.
[4] The CRDD's purpose of quoting the sentence in the decision appears to be to diminish the significance of ethnic discrimination against Roma in Romania. As it is taken seriously out of context, and is, therefore, misleading, I find the statement to be contrary to the evidence on the record.
[5] Second, it is agreed that the Applicant has the burden to prove that there is a reasonable chance that he would be persecuted for Convention grounds if returned to Romania. However, the CRDD states the burden as more than this and is, therefore, an error in law.
[6] Third, it is agreed that reasons must be given to substantiate negative findings of credibility. In the present case, no reasons are given for significant findings by the CRDD that the Applicant's evidence is not believed.
ORDER
Accordingly, I set the CRDD's decision aside and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
February 20, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010220
Docket: IMM-3215-00
BETWEEN:
MARIAN STANCULESCU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3215-00
STYLE OF CAUSE: Marian Stanculescu v. The Minister of
Citizenship and Immigration
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: February 19, 2001
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: February 20, 2001
APPEARANCES:
Ms. D. Jean Munn FOR APPLICANT
Mr. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners FOR APPLICANT
Calgary, Alberta
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General
Of Canada
Ottawa, Ontario
__________________ 1 Applicant's Application Record, p. 13.
2 Ibid, p. 199.
" | "" |
"2001 FCT 1010" | "" | "FC" | 2,001 | "Eminidis v. Canada (Minster of Citizenship and Immigration)" | "en" | "2001-09-11" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/46492/index.do" | "2022-08-18" | "Eminidis v. Canada (Minster of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-11
Neutral citation
2001 FCT 1010
File numbers
IMM-5228-00
Decision Content
Date: 20010911
Docket: IMM-5228-00
Neutral citation: 2001 FCT 1010
BETWEEN:
VLADIMIROS EMINIDIS
ELZA EMINIDI
ANDREAS EMINIDIS
MARIA EMINIDOU
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER AND REASONS FOR ORDER
NADON J.
[1] The plaintiffs' application for judicial review is allowed.
[2] As the tribunal concluded that there was a reasonable fear of persecution in the event of a return to Russia because of the principal plaintiff's political opinions, it could not in my opinion conclude that the said persecution, when occurring in Greece, could not be related to one of the grounds of persecution mentioned in the Convention.
[3] In my view, the tribunal made an error of law that justifies this Court's intervention. If the tribunal considered that the plaintiffs did not show that the Greek government could not protect them, it only had to say so.
[4] Consequently, the tribunal's decision of September 7, 2000 is quashed and the matter referred back to a new panel for reconsideration.
Marc Nadon
Judge
O T T A W A, Ontario
September 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5228-00
STYLE OF CAUSE: VLADIMIROS ET AL. v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 10, 2001
ORDER AND REASONS FOR ORDER BY: NADON J.
DATED: September 11, 2001
APPEARANCES:
Michel Lebrun FOR THE PLAINTIFF
Guy Lamb FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michel Lebrun FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
" | "" |
"2001 FCT 1011" | "" | "FC" | 2,001 | "Tofan v. Canada (Minister of Citizenship and Immigration)" | "en" | "2001-09-11" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/48337/index.do" | "2022-08-18" | "Tofan v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2001-09-11
Neutral citation
2001 FCT 1011
File numbers
IMM-3167-00
Decision Content
Date: 20010911
Docket: IMM-3167-00
Neutral citation: 2001 FCT 1011
BETWEEN:
IOAN TOFAN
MONICA LILIANA TOFAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicants to seek to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 19, 2000, pursuant to which their claims to refugee status in Canada were denied.
[2] The applicants, gypsies and citizens of Romania, claim a well-founded fear of persecution by reason of their ethnicity.
[3] The applicants left Romania on July 9, 1998, for Hungary, where they arrived on the following day. On July 19, they departed by plane for London and, on the following day, they left for Mexico, where they arrived on July 20. That day, they left, again by plane, for Costa Rica, where they stayed until July 25. On that day, they flew to the United States and then to Calgary, Alberta, where they arrived on July 25. They made their claims for refugee status on July 27, 1998.
[4] The Board, in denying both applicants refugee status, concluded that they were not credible. The applicants challenge the Board's decision on 8 grounds, namely:
1. Did the tribunal fail to give appropriate weight to the presumption of truthfulness, and thereby commit an error going to its jurisdiction?
2. Did the tribunal, in deciding that the claimants would not risk persecution because of gypsy ethnicity in Romania, arrive at a conclusion that was patently unreasonable and thereby commit a reviewable error?
3. Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when it held that Ioan Tofan's medical certificate had "no probative value" to the claimant's allegations of persecution?
4. Did the tribunal fail to observe principles of natural justice or procedural fairness, fail to consider relevant evidence and commit an error on the face of the record when it dismissed Exhibit P-18 - a police summons - for not being mentioned in Ioan Tofan's PIF, even though both claimants' written testimony filed at the hearing did contain mention of the incident, and the claimants were never confronted with the alleged omission at the hearing?
5. Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when, in making its decision concerning the claims to refugee status of both Ioan and Monica Tofan, it made a negative finding of credibility in relation to Monica Tofan's testimony (and therefore her claim) solely on the basis that it did not believe Ioan Tofan?
6. Did the tribunal commit an error of law when it applied the test from the Castillejos and Huerta decisions to the facts of the present case to find evidence that the Tofans did not have a reasonable fear of persecution?
7. Did the tribunal members, in conducting the hearing, take such an active role in questioning the claimants that their appearance of impartiality was lost so as to raise a reasonable apprehension of bias and commit a breach of the principles of natural justice?
8. Did the tribunal misdirect itself when it embarked upon an investigation of whether Ioan Tofan was a deserter and also of his religious beliefs, - even though the Applicants themselves were advancing their claim on the basis of ethnicity?
[5] I begin my analysis with ground 7: Did the tribunal members, in conducting the hearing, take such an active role in questioning the claimants that their appearance of impartiality was lost so as to raise a reasonable apprehension of bias and commit a breach of the principles of natural justice?
[6] I have read the transcript of the applicants' viva voce evidence given in Saskatoon on January 20, 2000, on at least three occasions. There is no doubt in my mind that the answer to this question is no. Nothing that was asked by the Board members, nor the manner in which the questions were posed, can give rise, in my view, to a reasonable apprehension of bias. In his memorandum, at paragraph 75, counsel for the applicants submits that the Board members' questioning "was so aggressive and extensive as to give rise to a reasonable apprehension of bias. It was also of such a nature as to tend to cause confusion in the mind of the claimants." Firstly, the fact that the questioning was extensive can certainly not be used to buttress an argument that the questioning gives rise to a reasonable apprehension of bias. Secondly, if confusion resulted from the questions posed by the Board members, that confusion, in my opinion, resulted from the fact that the applicants' story itself was confusing. One need only examine the answers given by the male applicant with respect to his status as a deserter and his conversion from the Orthodox Church to the Adventist Church to realize the confusion caused by his testimony. On the basis of the answers given by the male applicant to the questions posed by the Board on these issues, it would be very difficult to find the male applicant credible. In my view, the applicants' submissions on this point are wholly without merit.
[7] I now turn to ground 6: Did the tribunal commit an error of law when it applied the test from the Castillejos and Huerta decisions to the facts of the present case to find evidence that the Tofans did not have a reasonable fear of persecution?
[8] At page 8 of its Reasons, the Board states the following:
Lastly, before arriving in Canada, the claimants went through several countries which are signatories of the Geneva Convention without claiming refugee status. The claimant explained that they were not aware of such a possibility and that their intention was to come to Canada. The tribunal does not find this explanation satisfactory and considers that the fact that they did not claim at the first opportunity shows a lack of subjective fear.
[9] At paragraph 72 of his memorandum, counsel for the applicants submits that the Board:
[...] overstated the significance of the delay in claiming refugee status and ignored the Tofans' reasonable explanation for that delay. It then applied the Castillejos and Huerta decisions to find that that delay was conclusive on the issue of subjective fear of persecution, instead of one factor to be considered.
[10] It certainly cannot be argued, in my view, that the Board was not entitled to consider, as a relevant factor, the applicants' failure to claim refugee status either in Costa Rica or the United States. The applicants' explanation for their failure to claim was that they were not aware that they could claim refugee status elsewhere and that, in any event, their intention had always been to come to Canada.
[11] Whether that explanation was a reasonable one or not was for the Board to decide. I am satisfied that the Board did not make a reviewable error when it concluded that the applicants' failure to claim either in Costa Rica or in the United States was a relevant factor in the assessment of the applicants' subjective fear.
[12] I now turn to ground 8: Did the tribunal misdirect itself when it embarked upon an investigation of whether Ioan Tofan was a deserter and also of his religious beliefs, - even though the Applicants themselves were advancing their claim on the basis of ethnicity?
[13] Regarding this issue, the applicants submit that since the issues of the male applicant's desertion and conversion to the Adventist religion were not put forward by the applicants as primary grounds of their claim to refugee status, the Board erred in spending time questioning them on these issues. At paragraph 78 of his memorandum, counsel makes the following submission:
[...] It is a reviewable error for the tribunal to decide that a claimant who wishes to bring a claim forward on the basis of ethnicity must also prove the issue of religion. The Tofan's [sic] claim to refugee status was based upon their gypsy ethnicity coupled with minimal political involvement in the Roma Party; it was not based upon persecution due to Seventh Day Adventist beliefs.
[14] In my view, counsel misses the point. At no time did the Board require the applicants to prove "the issue of religion". The issue arose during the course of the male applicant's testimony and the Board members questioned him in regard thereto. The Board members questioned the applicants, properly in my view, with regard to the reasons given in their Personal Information Forms (their "PIFs") as to why they had left their country and were seeking protection in Canada. In so doing, the Board members were not limited to the specific reasons given by applicants in their PIFs. In seeking to assess the validity of the applicants' refugee claim, the Board members were certainly entitled to question the applicants in a broad and general way, so as to determine whether the story put forward by them was credible. The fact that the male applicant was far from convincing, with regard to his desertion and his religious beliefs, was a factor which the Board was entitled to consider in determining whether or not the applicants had proved their claim. Consequently, the applicants fail on this issue.
[15] I now turn to ground 1: Did the tribunal fail to give appropriate weight to the presumption of truthfulness, and thereby commit an error going to its jurisdiction?
[16] The answer to this question is no. The Board concluded that the applicants' evidence was not credible and hence, rejected their refugee claims. The Board gave clear and cogent reasons as to why it did not believe the applicants and, as a result, did not fail to give appropriate weight to the presumption of truthfulness as required by the Court of Appeal's decision in Maldonado v. Canada (M.E.I.) (1980), 31 N.R. 34.
[17] Another ground put forward by the applicants for challenging the Board's decision is ground 2: Did the tribunal, in deciding that the claimants would not risk persecution because of gypsy ethnicity in Romania, arrive at a conclusion that was patently unreasonable and thereby commit a reviewable error?
[18] In my view, on the evidence before it, the Board did not arrive at a conclusion that could be qualified as being unreasonable. There was evidence supporting the Board's conclusion and thus, the applicants fail on this ground.
[19] I now turn to grounds 3 and 4: (3) Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when it held that Ioan Tofan's medical certificate had "no probative value" to the claimant's allegations of persecution?; (4) Did the tribunal fail to observe principles of natural justice or procedural fairness, fail to consider relevant evidence and commit an error on the face of the record when it dismissed Exhibit P-18 - a police summons - for not being mentioned in Ioan Tofan's PIF, even though both claimants' written testimony filed at the hearing did contain mention of the incident, and the claimants were never confronted with the alleged omission at the hearing?
[20] Again, the answer to these questions is no. Firstly, the Board explained why it could not give any weight to the male applicant's medical certificate and exhibit P-18, a police summons. Secondly, that conclusion is not surprising, considering that overall, the Board could not believe many aspects of the applicants' story. Since the Board could not accept the truthfulness of the facts underlying these documents, it comes as no surprise that the documents themselves were discounted by the Board.
[21] I now turn to ground 5: Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when, in making its decision concerning the claims to refugee status of both Ioan and Monica Tofan, it made a negative finding of credibility in relation to Monica Tofan's testimony (and therefore her claim) solely on the basis that it did not believe Ioan Tofan?
[22] The gist of the applicants' submission on this ground is found at paragraphs 67 and 68 of their memorandum:
67. In its decision, the tribunal extensively reviewed Ioan Tofan's evidence and almost entirely ignored Monica Tofan. In fact, on pages 6 and 7 of the decision, it analyzed her evidence in one paragraph, and then dismissed it in a single sentence:
"Since we do not believe that the claimant was sought by the police, we do not believe that the police came to look for him at his home and raped his wife on May5, 1998.
In short, the tribunal did not even pretend to consider her testimony and to make any independent evaluations of her credibility as a witness.
68. Monica Tofan was a principal claimant with an individual claim to refugee status that did not wholly rise or fall with her husband's claim. The case law clearly establishes that it is possible for one member of a couple to be found a refugee, while the other spouse is not.
[23] I will begin my analysis of this ground by referring to what the Board said in its decision concerning the female applicant. At pages 3 and 4 of its Reasons, the Board, in its summary of the facts, states:
The female claimant adds the following:
She finished elementary school in Gherla in 1982 and in 1987 high school in a different school. As a gypsy, she was despised by the teachers and other students and ill-treated. After her marriage, she had a job from 1989 till 1998 as a worker in a furniture company.
When her first daughter was born in 1988, the doctor, in a hurry, pulled the baby too hard. The baby suffered a collar-bone sprain and had to have her arm and shoulder tied in a sling. She was blamed for it. In the same year, the communists demolished their house, the only gypsy one in the area. They had to move in an apartment.
In 1990, she had to work in a very dangerous environment. A co-worker pushed a cart full of material towards her and she broke her arm trying to avoid being crushed. They laughed at her. She had to finish the working day to be able to see a doctor.
In 1994, two years after her second daughter was born, she had a miscarriage because of her heavy physical work. She was taken to hospital in Cluj for a blood transfusion, but the nurse gave her the wrong type of blood, either on purpose or because of lack of experience. The claimant had an itching reaction all over her body, but no nurse answered her call. Finally, a visitor brought a doctor who apologized. "This is what happens to gypsies, nobody cares or they cause us more harm".
In the summer of 1997, more precisely in August 1997, the serious problems started because her husband was a member of the "Roma party".
[24] Further, at pages 6 and 7 of its Reasons, the Board adds the following:
The female claimant alleges several incidents, including receiving the wrong blood transfusion. She stated: "This is what happens to us gypsies. Nobody cares or instead of helping us, they cause us more harm". However, she specified that it was in August 1997 that the "serious problems" started due to the fact that her husband was a member of the Roma party.
Since we do not believe that the claimant was sought by the police, we do not believe that the police came to look for him at his home and raped his wife on May 5, 1998.
[25] Unfortunately for the applicants, I must side with the respondent on this ground. I therefore disagree with the applicants' assertion that the Board "did not even pretend to consider their testimony and to make any independent evaluations of her credibility as a witness". To a considerable extent, the female applicant's story was dependent on that of her husband, which the Board found not credible. Their evidence, as counsel for the respondent argued, was intertwined and, as result, their claims were considered jointly.
[26] For these reasons, this application for judicial review shall be dismissed.
Marc Nadon
JUDGE
O T T A W A, Ontario
September 11, 2001
" | "" |
"2001 FCT 1012" | "" | "FC" | 2,001 | "Canadian Red Cross Society v. Air Canada" | "en" | "2001-09-11" | "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/40739/index.do" | "2022-08-18" | "Canadian Red Cross Society v. Air Canada
Court (s) Database
Federal Court Decisions
Date
2001-09-11
Neutral citation
2001 FCT 1012
File numbers
T-2053-99
Notes
Digest
Decision Content
Date: 20010911
Docket: T-2053-99
Neutral citation: 2001 FCT 1012
ACTION IN PERSONAM AGAINST
AIR CANADA AND EXPEDITORS INTERNATIONAL
BETWEEN:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendant
AND
AIR CANADA
Third Party
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This motion to amend, filed by the plaintiff of record (the Red Cross) pursuant to rule 75 of the Federal Court Rules, 1998, (the Rules), seeks leave to add Alpha Therapeutic (Alpha) as a plaintiff in the style of cause.
[2] The action in which this motion was brought is governed in substance by the Carriage by Air Act, R.S., 1985, c. C-26 (the Act) and the Warsaw Convention (the Convention) which is incorporated into that Act.
Facts
[3] The relevant facts in this case are summarized below.
[4] After merchandise belonging to the Red Cross was severely damaged during a flight between Los Angeles and Ottawa on or about November 26, 1997, the Red Cross filed an action for damages on November 22, 1999, against, inter alia, Air Canada (the defendant) in its capacity as carrier. In the air waybill, the Red Cross had been named as consignee, Air Canada as carrier and Alpha as consignor.
[5] As sole plaintiff, the Red Cross brought the action within the two-year limitation period stipulated by article 29 of the Convention, which reads:
Article 29
(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.
Article 29
(1) L'action en responsabilité doit être intentée, sous peine de déchéance, dans le délai de deux ans à compter de l'arrivée à destination ou du jour où l'aéronef aurait dû arriver, ou de l'arrêt du transport.
(2) Le mode du calcul du délai est déterminé par la loi du tribunal saisi.
Analysis
[6] Counsel for the Red Cross attempted to base the action on articles 12 to 14 of the Convention for the purpose of arguing that the action brought in a timely manner by their client had interrupted the limitation period in fact and in law in regards to both the Red Cross and Alpha. The relevant passages of those articles read as follows:
Article 12
(1) Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the aerodrome of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air waybill, or by requiring it to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right.
...
(4) The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13....
Article 12
(1) L'expéditeur a le droit, sous la condition d'exécuter toutes les obligations résultant du contrat de transport, de disposer de la marchandise, soit en la retirant à l'aérodrome de départ ou de destination, soit en l'arrêtant en cours de route lors d'un atterrissage, soit en la faisant délivrer au lieu de destination ou en cours de route à une personne autre que le destinataire indiqué sur la lettre de transport aérien, soit en demandant son retour à l'aérodrome de départ, pour autant que l'exercice de ce droit ne porte préjudice ni au transporteur, ni aux autres expéditeurs et avec l'obligation de rembourser les frais qui en résultent.
...
(4) Le droit de l'expéditeur cesse au moment où celui du destinataire commence, conformément à l'article 13 ci-dessous....
Article 13
(1) Except in the circumstances set out in the preceding Article, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill.
...
Article 13
(1) Sauf dans les cas indiqués à l'article précédent, le destinataire a le droit, dès l'arrivée de la marchandise au point de destination, de demander au transporteur de lui remettre la lettre de transport aérien et de lui livrer la marchandise contre le paiement du montant des créances et contre l'exécution des conditions indiquées dans la lettre de transport aérien.
...
Article 14
The consignor and the consignee can respectively enforce all the rights given them by Articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract.
Article 14
L'expéditeur et le destinataire peuvent faire valoir tous les droits qui leur sont respectivement conférés par les articles 12 et 13, chacun en son propre nom, qu'il agisse dans son propre intérêt ou dans l'intérêt d'autrui, à condition d'exécuter les obligations que le contrat impose.
[7] In my view, those articles do not apply in this case since they do not contemplate the factual situation faced by the Red Cross, i.e. loss of or damage to shipped cargo. Article 18 of the Convention is addressed to the Red Cross's situation and reads as follows:
Article 18
(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.
...
Article 18
(1) Le transporteur est responsable du dommage survenu en cas de destruction, perte ou avarie de bagages enregistrés ou de marchandises lorsque l'événement qui a causé le dommage s'est produit pendant le transport aérien.
...
[8] Therefore, it cannot be determined that the action of the Red Cross also interrupted the limitation period with regards to Alpha.
[9] In my view, the appropriate reasoning and the conclusion to draw can be found in Newfoundland Steamships Ltd. et al. v. Canada Steamship Lines Ltd. et al. (1979),
107 D.L.R. (3d) 84, a decision of the Federal Court of Appeal.
[10] In that case, some plaintiffs listed specifically in an appendix to their statement of claim in which they had described themselves in the style of cause as "those persons interested in the cargo laden on board the ship ‘Fort St. Louis'" sought to add, after the expiry of the limitation period, the names of additional plaintiffs whose identity was not known at the time the action was commenced.
[11] Mr. Justice Pratte, who set aside the decision of the judge below granting the amendment, made the following analysis:
The Judge below, nevertheless, rendered the judgment against which this appeal is directed and granted the application for reasons that he summarized as follows [90 D.L.R. (3d) 79, at p. 83; [1979] 1 F.C. 393]:
On the whole, therefore, I am of the opinion that this is not a case where the claims of any new parties, appearing in the appendix, now sought to be substituted for the former appendix, are really new claimants whose claims are prescribed but rather that they are included in the designation of persons interested in the cargo on the ship. It is merely the substitution of new particulars which have since come to light for former particulars and, moreover, in the great majority of the cases merely adds the name of the shipper as well as the consignee, or conversely, provides defendants with greater details from which to check the claims. It is not necessary to decide at this stage of the proceedings whether the claimant should be the shipper or the consignee but justice requires that whoever suffered the loss should be compensated for it, provided that the total amount of the claim does not exceed $509,443.28 (which includes surveyors and adjusters fees) sought for the "Plaintiff cargo interest for distribution as their interests may appear" as stated in conclusion of the original statement of claim.
This judgment, in my respectful opinion, must be set aside.
It is common ground that the prescription of the plaintiffs' claim was governed by the law of Quebec where the cause of action arose (see s. 38 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.)). The plaintiffs' claim was based either entirely on delict, as found by the Judge below, or, as argued by the plaintiffs' counsel, both on delict and contract. In either case, the statement of claim asserted a delictual claim which was subject to a prescription of two years (art. 2261 of the Quebec Civil Code) after the expiry of which the debt (in so far as it was founded on delict) was absolutely extinguished (art. 2267 Civil Code). In these circumstances, the Judge could not authorize the addition of new plaintiffs to the action unless he came to the conclusion that the commencement of the action in 1975 had interrupted the prescription of the claims of those new plaintiffs as well as of those who were named as plaintiffs in the original action: see Leesona v. Consolidated Textile Mills (1977), 82 D.L.R. (3d) 56 at p. 62, [1978] 2 S.C.R. 2 at p. 11, 35 C.P.R. (2d) 254.
It is argued, however, that the plaintiffs were not really seeking to add new parties to the action; they merely wanted, it is said, to particularize the description of the plaintiffs in the style of cause ("THOSE PERSONS INTERESTED IN THE CARGO etc. ..."). I do not agree. Had the plaintiffs been merely described as "those interested in the cargo ...", it is certainly arguable that the action would have been irregularly instituted and would not, for that reason, have interrupted the prescription. But this point need not be decided since, in this case, the plaintiffs were not described in that vague and general way: the style of cause as well as para. 3 of the statement of claim contained an express reference to annex A as containing the names of all those having an interest in the cargo. The action, in my opinion, was commenced in the name of the persons enumerated in annex A and the effect of the judgment under attack is clearly, in my view, to authorize that new plaintiffs be added to the action.
The decision of the Supreme Court of Canada in the Leesona case does not, in my opinion, support the decision of the Trial Division. Here the plaintiffs were not seeking to correct a misnomer or to overcome a mere technicality; they wanted to amend the statement of claim so as to add new parties whose identities had been unknown to all persons concerned at the time of the commencement of the action. That, in my view, could not be done because I do not see how the action commenced in 1975 could have interrupted the prescription of claims of persons who were not parties to that action.
In the exercise of its discretion under Rule 424, the Court cannot, even in order to achieve a fuller measure of justice, disregard the effect of prescription. This is, in my view, what the Trial Division has done here.
[Emphasis added]
[12] In this case, as in Newfoundland Steampships, it cannot be argued that the plaintiffs are seeking to correct a misnomer or to overcome a mere technicality. Nor is this a case where fairness requires the court's intervention to ensure that procedure does not prevail over substance.
[13] An example of such a situation is the Leesona decision, cited by Pratte J.A. in Newfoundland Steampships, where, despite the expiry of the limitation period, the Supreme Court allowed the defendant to correct its company name in order that the style of cause reflect the parties' intentions that the action be brought against the operating company and not the holding company.
[14] In Pateman v. Flying Tiger Line, [1987] 3 F.C. 613, upheld on appeal as to the result in (1988), 89 N.R.155, a decision the Red Cross relied on heavily, an insurer, which had become legally subrogated to the rights of the insured, sought to add the name of the insured as a plaintiff to the action in damages it had brought pursuant to the Act and the Convention. Notwithstanding the expiry of the two-year limitation period under article 29 of the Convention, the insurer was allowed to make the change in order to prevent a potential challenge to its status in the action by the defendants.
[15] It is clear from the reasons stated at the beginning and at the end of Pateman that the Court considered the insurer and the insured to constitute a single party in the action and that there was a blatant need to remedy the situation if the action was to proceed on the merits unhindered by procedural requirements.
[16] The situation in this case is distinctly different from that in Leesona, Pateman and in similar cases mentioned in either of those decisions.
[17] In the case at bar, the present plaintiff, the Red Cross, was aware from the outset of the existence of Alpha as a separate entity. Although an attempt was made to argue that Alpha had not been added as co-plaintiff by sheer inadvertence, no affidavit was produced as evidence in that regard.
[18] It appears therefore that two separate entities had a right of action against the defendants but that for reasons unknown to this Court, only one of those entities exercised its right of action within the appropriate period. Since I am unable to conclude, as did the Court in Newfoundland Steamships, that the action brought by the Red Cross has interrupted the limitation period in favour of Alpha, I must find that Alpha's right of action is prescribed. Notwithstanding the latitude normally afforded the Court on motions to amend, the motion in this case must be dismissed with costs.
[19] Although in Pateman, the trial division referred to the former rule 1716, the ancestor of rules 103 and 104, I think it would be inappropriate in this case to apply rules 76, 77 or 104(1)(b) since adding Alpha as a plaintiff would effectively disregard the substantive rules of prescription prescribed by the Convention.
[20] For these reasons, the plaintiff's motion to amend will be dismissed with costs. In order to dispose of its other motion to extend the limitation period for service of its affidavit of documents, the plaintiff shall serve that affidavit within 10 days of the order accompanying these reasons.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
September 11, 2001
Certified true translation
S. Debbané, LL.B.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
STYLE OF CAUSE:
T-2053-99
ACTION IN PERSONAM AGAINST AIR CANADA AND EXPEDITORS INTERNATIONAL
BETWEEN:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendants
AND
AIR CANADA
Third Party
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:July 9, 2001
REASONS FOR ORDER BY RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER:September 11, 2001
APPEARANCES:
Isabelle Pillet
For the Plaintiff
Timothy Trembley
For Air Canada as Defendant and Third Party
SOLICITORS OF RECORD:
De Man, Pilotte
Montréal, Quebec
For the Plaintiff
Paterson, MacDougall
Toronto, Ontario
For Air Canada as Defendant and Third Party
Klein & Schonblum Associates
Toronto, Ontario
For Expeditors International as Defendant
Date: 20010911
Docket: T-2053-99
Montréal, Quebec, September 11, 2001
Present: Richard Morneau, prothonotary
ACTION IN PERSONAM AGAINST
AIR CANADA AND EXPEDITORS INTERNATIONAL
BETWEEN:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendants
AND
AIR CANADA
Third Party
ORDER
The plaintiff's motion to amend is dismissed with costs. In order to dispose of its
other motion to extend the limitation period for service of its affidavit of documents, the
plaintiff shall serve that affidavit within 10 days of this order.
Richard Morneau
Prothonotary
Certified true translation
Sophie Debbané, LL.B.
Federal Court of Canada
Trial Division
Date: 20010911
Docket: T-2053-99
ACTION IN PERSONAM AGAINST
AIR CANADA AND EXPEDITORS INTERNATIONAL
Between:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendants
AND
AIR CANADA
Third Party
REASONS FOR ORDER
" | "" |
Refugee Law Lab: Canadian Legal Data
Dataset Summary
The Refugee Law Lab supports bulk open-access to Canadian legal data to facilitate research and advocacy. Bulk open-access helps avoid asymmetrical access-to-justice and amplification of marginalization that results when commercial actors leverage proprietary legal datasets for profit -- a particular concern in the border control setting.
The Canadian Legal Data dataset includes the unofficial full text of thousands of court and tribunal decisions at the federal level. It can be used for legal analytics (i.e. identifying patterns in legal decision-making), to test ML and NLP tools on a bilingual dataset of Canadian legal materials, and to pretrain language models for various tasks.
Dataset Structure
Data Instances
Court Decisions
- SCC: Full text of Supreme Court of Canada decisions, based on the Refugee Law Lab's Supreme Court of Canada Bulk Decisions Dataset (1877 – 2023)
- FCA: Full text of Federal Court of Appeal (Canada) decisions that have been given a neutral citation, based on the Refugee Law Lab's Federal Court of Appeal Bulk Decisions Dataset (2001-2023)
- FC: Full text of Federal Court (Canada) decisions that have been given a neutral citation, based on the Refugee Law Lab's Federal Court Bulk Decisions Dataset (2001-2023)
- TCC: Full text of Tax Court of Canada decisions that have been given a neutral citation, based on the Refugee Law Lab's Tax Court of Canada Bulk Decisions Dataset (2003-2023)
Tribunal Decisions
- RLLR: Full text of Immigration and Refugee Board, Refugee Protection Division Decisions, as reported in the Refugee Law Lab Reporter, based on the Refugee Law Lab's RLLR Bulk Decisions Dataset (2019 – 2022)
Data Fields
citation1 (string): Legal citation for the document (neutral citation where available)
citation2 (string): For some documents multiple citations are available (e.g. for some periods the Supreme Court of Canada provided both official reported citation and neutral citation)
dataset (string): Name of the data instance (e.g. "SCC", "FCA", "FC", "TCC", etc)
year (int32): Year of the document date, which can be useful for filtering
name (string): Name of the document, typically the style of cause of a case
language (string): Language of the document, "en" for English, "fr" for French, "" for no language specified
document_date (string): Date of the document, typically the date of a decision (yyyy-mm-dd)
source_url (string): URL where the document was scraped and where the official version can be found
scraped_timestamp (string): Date the document was scraped (yyyy-mm-dd)
unofficial_text (string): Full text of the document (unofficial version, for official version see source_url)
other (string): Field for additional metadata in JSON format, currently a blank string for most datasets
Data Languages
Many documents are available in both English and French. Some are only available in one of the two languages.
Data Splits
The data has not been split, so all files are in the train split. If splitting for training/validation, some thought should be given to whether it is necessary to limit to one language or to ensure that both English and French versions of the same documents (where available) are put into the same split.
Data Loading
To load all data instances:
from datasets import load_dataset
dataset = load_dataset("refugee-law-lab/canadian-legal-data", split="train")
To load only a specific data instance, for example only the SCC data instance:
from datasets import load_dataset
dataset = load_dataset("refugee-law-lab/canadian-legal-data", split="train", data_dir="SCC")
Dataset Creation
Curation Rationale
The dataset includes all the Bulk Legal Data made publicly available by the Refugee Law Lab. The Lab has focused on federal courts (e.g. Supreme Court of Canada, Federal Court of Appeal, Federal Court) as well as federal administrative tribunals (e.g. Immigration and Refugee Board) because immigration and refugee law, which is the main area of interest of the Lab, operates mostly at the federal level.
Source Data
Initial Data Collection and Normalization
Details (including links to github repos with code) are available via links on the Refugee Law Lab's Bulk Legal Data page.
Personal and Sensitive Information
Documents may include personal and sensitive information. All documents have been published online or otherwise released publicly by the relevant court or tribunal. While the open court principle mandates that court (and some tribunal) materials be made available to the public, there are privacy risks when these materials become easily and widely available. These privacy risks are particularly acute for marginalized groups, including refugees and other non-citizens whose personal and sensitive information is included in some of the documents in this dataset. For example, imagine a repressive government working with private data aggregators to collect information that is used to target families of political opponents who have sought asylum abroad. One mechanism used to try to achieve a balance between the open court principle and privacy is that in publishing the documents in this dataset, the relevant courts and tribunals prohibit search engines from indexing the documents. Users of this data are required to do the same.
Non-Official Versions
Documents included in this dataset are unofficial copies. For official versions published by the Government of Canada, please see the source URLs.
Non-Affiliation / Endorsement
The reproduction of documents in this dataset was not done in affiliation with, or with the endorsement of the Government of Canada.
Considerations for Using the Data
Social Impact of Dataset
The Refugee Law Lab recognizes that this dataset -- and further research using the dataset -- raises challenging questions about how to balance protecting privacy, enhancing government transparency, addressing information asymmetries, and building technologies that leverage data to advance the rights and interests of refugees and other displaced people, as well as assisting those working with them (rather than technologies that enhance the power of states to control the movement of people across borders).
More broadly, the Refugee Law Lab also recognizes that considerations around privacy and data protection are complex and evolving. When working on migration, refugee law, data, technology and surveillance, we strive to foreground intersectional understandings of the systemic harms perpetuated against groups historically made marginalized. We encourage other users to do the same.
We also encourage users to try to avoid participating in building technologies that harm refugees and other marginalized groups, as well as to connect with community organizations working in this space, and to listen directly and learn from people who are affected by new technologies.
We will review the use these datasets periodically to examine whether continuing to publicly release these datasets achieves the Refugee Law Lab's goals of advancing the rights and interests of refugees and other marginalized groups without creating disproportionate risks and harms, including risks related to privacy and human rights.
Discussion of Biases
The dataset reflects many biases present in legal decision-making, including biases based on race, immigration status, gender, sexual orientation, religion, disability, socio-economic class, and other intersecting categories of discrimination.
Other Known Limitations
Publicly available court and tribunal decisions are not a representative sample of legal decision-making -- and in some cases may reflect significantly skewed samples. To give one example, the vast majority of Federal Court judicial reviews of refugee determinations involve negative first instance decisions even thought most first instance decisions are positive (this occurs because the government seldom applies for judicial reviews of positive first instance decisions whereas claimants frequently apply for judicial review of negative decisions). As such, generative models built partly on this dataset risk amplifying negative refugee decision-making (rather than more common positive refugee decision-making). Due to the ways that legal datasets may be skewed, users of this dataset are encouraged to collaborate with or consult domain experts.
Additional Information
Licensing Information
Attribution-NonCommercial 4.0 International (CC BY-NC 4.0)
NOTE: Users must also comply with upstream licensing for the SCC, FCA & FC data instances, as well as requests on source urls not to allow indexing of the documents by search engines to protect privacy. As a result, users must not make the data available in formats or locations that can be indexed by search engines.
Warranties / Representations
We make no warranties or representations that the data included in this dataset is complete or accurate. Data were obtained through academic research projects, including projects that use automated processes. While we try to make the data as accurate as possible, our methodologies may result in inaccurate or outdated data. As such, data should be viewed as preliminary information aimed to prompt further research and discussion, rather than as definitive information.
Dataset Curators
Sean Rehaag, Osgoode Hall Law School Professor & Director of the Refugee Law Lab
Citation Information
Sean Rehaag, "Refugee Law Lab: Canadian Legal Data" (2023) online: Hugging Face: https://huggingface.co/datasets/refugee-law-lab/canadian-legal-data.
Acknowledgements
This project draws on research supported by the Social Sciences and Humanities Research Council and the Law Foundation of Ontario.
The project was inspired in part by the excellent prior work by pile-of-law (Peter Henderson et al, "Pile of Law: Learning Responsible Data Filtering from the Law and a 256GB Open-Source Legal Dataset" (2022), online: arXiv: https://arxiv.org/abs/2207.00220).
- Downloads last month
- 4